|Judgments - R (on the application of G) (FC) (Appellant) v London Borough of Southwark (Respondents)
HOUSE OF LORDS
 UKHL 26
on appeal from:  EWCA Civ 877
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R (on the application of G) (FC) (Appellant) v London Borough of Southwark (Respondents)
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Neuberger of Abbotsbury
(Instructed by Fisher Meredith LLP)
(Instructed by Legal Services Department, London Borough of Southwark)
Secretary of State for Children, Schools and Families
Steven Kovats (written submissions only)
(Instructed by Treasury Solicitors)
25 and 26 MARCH 2009
WEDNESDAY 20 MAY 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R (on the application of G) (FC) (Appellant) v London Borough of Southwark (Respondents)
 UKHL 26
LORD HOPE OF CRAIGHEAD
LORD WALKER OF GESTINGTHORPE
BARONESS HALE OF RICHMOND
"Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned;
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."
This subsection contains two technical terms which require explanation. Most important is a "child in need", defined in section 17(10) of the 1989 Act:
"For the purposes of this Part a child shall be taken to be in need if -
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled."
Although not relevant in this case, "parental responsibility" is also a technical term, covering all the legal powers and duties of parents, and is only held by parents, guardians and people with the benefit of certain orders or agreements under the 1989 Act: see ss 4, 4A, 12 and 33.
". . . the clear intention of the legislation is that these children need more than a roof over their heads and that local children's services authorities cannot avoid their responsibilities towards this challenging age group by passing them over to the local housing authorities."
"Such a young person has needs over and above the simple need for a roof over her head and these can better be met by social services. Unless the problem is relatively short-term, she will then become an eligible child, and social services accommodation will also bring with it the additional responsibilities to help and support her in the transition to independent adult living. It was not intended that social services should be able to avoid those responsibilities by looking to the housing authority to accommodate the child."
"It shall be the general duty of every local authority (in addition to the other duties imposed upon them by this Part) -
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs."
Section 17(6) makes it clear that:
"The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash."
The history of this case
"Therefore the primary needs identified here for A relate to Housing and Education. Having examined the information available, I see or have not been made aware [of] any additional needs or vulnerabilities that would suggest the need for longer-term accommodation being provided by Social Services. A is 17 years of age and not in full-time education at this point in time, therefore I feel that accommodation provided by Southwark HPU [Homeless Persons Unit] and referrals to other support agencies . . . will be sufficient at this time to work on addressing the social, emotional and practical issues identified in this assessment."
There followed a list of recommended referrals, not only to the HPU, but also to other sources of help and support. Principal among these was the children's authority's own Family Resource Team, which could provide "ongoing social work support", help him in dealings with the Department for Work and Pensions in applying for benefits, explore holding a family group conference to work on reconciling him with his mother, link in with his prospective college and provide any support necessary for his enrolment, and refer him to an agency giving housing and careers advice. This scarcely suggests that all A needed was a roof over his head.
"Our client department has fully considered your client's needs and reached the decision that section 20 is not appropriate as A has no identified need for social services support, and his needs can be satisfactorily met through provision of housing and referrals to other support agencies. . . .
Our client department has fulfilled its duty to assess your client and reached the decision that he is not in need of section 20 accommodation; he simply requires 'help with accommodation'."
"We believe that the provisions should be stated clearly in general terms of making services available at an appropriate level to the needs of the area rather than in terms of duties owed to individual children or families, in order to leave local authorities a wide flexibility to decide what is appropriate in particular cases while providing for a reasonable overall level of provision. It is for local authorities to decide upon their priorities within the resources available to them."
(1) Is the applicant a child? That was the issue in the Croydon case (in which leave to appeal has been granted) but it is not an issue in this.
(2) Is the applicant a child in need? This will often require careful assessment. In this case it is common ground that A is a child in need, essentially because he is homeless. It is, perhaps, possible to envisage circumstances in which a 16 or 17 year old who is temporarily without accommodation is nevertheless not in need within the meaning of section 17(10): perhaps a child whose home has been temporarily damaged by fire or flood who can well afford hotel accommodation while it is repaired. There are hints of this in the social worker's view that "A is quite a resourceful teenager - by his own admission he has spent the last 1 - 2 months moving around amongst friends and girlfriends and sourcing his own accommodation. Furthermore, it appears that A has attempted to adhere to his own values around personal hygiene despite these circumstances. . . " But it cannot seriously be suggested that a child excluded from home who is "sofa surfing" in this way, more often sleeping in cars, snatching showers and washing his clothes when he can, is not in need. Mr Brims also pointed out that "A's lack of permanent housing will have a long term impact upon his educational attainment and will also impact upon other practical areas of his life. Without permanent accommodation, A does not have a base level of stability on which to build other areas of his life, and daily tasks such as personal hygiene, washing clothes and maintaining a reasonable diet will pose significant challenges."
(3) Is he within the local authority's area? This again is not contentious. But it may be worth remembering that it was an important innovation in the forerunner provision in the Children Act 1948. Local authorities have to look after the children in their area irrespective of where they are habitually resident. They may then pass a child on to the area where he is ordinarily resident under section 20(2) or recoup the cost of providing for him under section 29(7). But there should be no more passing the child from pillar to post while the authorities argue about where he comes from.
(4) Does he appear to the local authority to require accommodation? In this case it is quite obvious that a sofa surfing child requires accommodation. But there may be cases where the child does have a home to go to, whether on his own or with family or friends, but needs help in getting there, or getting into it, or in having it made habitable or safe. This is the line between needing "help with accommodation" (not in itself a technical term) and needing "accommodation".
(5) Is that need the result of:
(a) there being no person who has parental responsibility for him; for example, where his parents were unmarried, his father does not have parental responsibility, and his mother had died without appointing a guardian for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented from providing him with suitable accommodation or care.
As Lord Hope pointed out in the Barnet case, (c) has to be given a wide construction, if children are not to suffer for the shortcomings of their parents or carers. It is not disputed that this covers a child who has been excluded from home even though this is the deliberate decision of the parent. However, it is possible to envisage circumstances in which a 16 or 17 year old requires accommodation for reasons which do not fall within (a), (b) or (c) above. For example, he may have been living independently for some time, with a job and somewhere to live, and without anyone caring for him at all; he may then lose his accommodation and become homeless; such a child would not fall within section 20(1) and would therefore fall within the 2002 Order and be in priority need under the 1996 Act.
(6) What are the child's wishes and feelings regarding the provision of accommodation for him? This is a reference to the requirement in section 20(6) of the 1989 Act, as amended by section 53(2) of the Children Act 2004:
"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."
Some have taken the view that this refers only to the child's views about the sort of accommodation he should have, rather than about whether he should be accommodated at all: see R (S) v Sutton London Borough Council  EWHC 1196 (Admin), para 51. This is supported by the opening words, which are "before providing" rather than "before deciding whether to provide"; contrast the equivalent provision in section 17(4A), "before determining what (if any) service to provide . . ." On the other hand, as explained in Hammersmith and Fulham, it is unlikely that Parliament intended that local authorities should be able to oblige a competent 16 or 17 year old to accept a service which he does not want. This is supported by section 20(11), which provides that a child who has reached 16 may agree to be accommodated even if his parent objects or wishes to remove him. It is a service, not a coercive intervention. Whether one reaches the same result via a broader construction of section 20(6) or via the more direct route, that there is nothing in section 20 which allows the local authority to force their services upon older and competent children who do not want them, may not matter very much. It is not an issue in this case, because A wanted to be accommodated under section 20. But a homeless 16 or 17 year old who did not want to be accommodated under section 20 would be another example of a child in priority need under the 2002 Order.
(7) What consideration (having regard to his age and understanding) is duly to be given to those wishes and feelings? As Dyson LJ pointed out in R (Liverpool City Council) v Hillingdon London Borough Council  EWCA Civ 43, para 32, "children are often not good judges of what is in their best interests". But that too should not be an issue here. A had been given legal advice as to which legal route to accommodation would be in his best interests. He needed help to get back into education and get his life on track towards responsible adult independence and away from whatever influence the gang culture was exerting over him. That would be better provided for him if he were accommodated under section 20 and became an "eligible" child.
Items (8) and (9) on the list given by Ward LJ, referring to the position of people with parental responsibility, do not apply in this case because A had reached the age of 16 and agreed to being provided with accommodation under section 20. It follows, therefore, that every item in the list had been assessed in A's favour, that the duty had arisen, and that the authority were not entitled to "side-step" that duty by giving the accommodation a different label.
LORD NEUBERGER OF ABBOTSBURY