Primacy to be given to section 20 of the Children Act 1989
Appeal allowed in the House of Lords in G v Southwark LBC
If a child of 16 or 17 who has been thrown out of the family home presents himself to a local children’s services authority and asks to be accommodated by them under section 20 of the Children Act 1989, is it open to that authority instead to arrange for him to be accommodated by the local housing authority under the homelessness provisions of Part VII of the Housing Act 1996?
The clear answer of the House of Lords to this important question, given when allowing G’s appeal against Southwark, was no. If the requirements of section 20 Children Act are met, then a service must be provided by Children Services under section 20 of the Children Act. Moreover in reaching that conclusion the House of Lords gave clear guidance as to the primacy of the obligations owed under section 20 when considered together with section 17 and with duties owed under Part 7 of the Housing Act 1996.
The following points are important to note:
- The issue was one of construction of section 20 – What do the criteria in section 20(1) mean and how, if at all, is their application affected by the other duties of children’s authorities, in particular under section 17 of the 1989 Act, and by the duties of housing authorities under the 1996 Act? (Baroness Hale at paragraph 7)
- The question was whether the requirements of section 20 were met – The Appellant’s case was that they were all met. He was a child. He was in need. He was in their area. He was homeless so he required accommodation. He required it for one of the reasons set out in sub paragraphs (a) to (c). All the other requirements of section 20 were met.
- If they were met, no service could be provided under section 17; nor could it be provided under the homelessness legislation – In my view, therefore, the Barnet case is, if anything, helpful to A, in highlighting the primacy of the specific duty owed to individuals in section 20 over the general duty owed to children in need and their families and its associated powers in section 17, just as the Hammersmith and Fulham case is helpful to A in highlighting the primacy of the Children Act over the Housing Act in providing for children in need. (Baroness Hale, paragraph 25)
- The Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051) consistent with that approach – The 2002 Order takes out of priority need those children who require accommodation in the circumstances set out in section 20(1). They cannot in the same breath be put back into priority need by adjudging that they do not require accommodation at all when clearly they do. (Baroness Hale at paragraph 26)
- To read the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051) as providing a more general obligation to accommodate 16 and 17 year olds under the homelessness legislation involves either circular reasoning, or impermissibly reading words into section 20 – The only way to break out of that circle (recognised by Anthony Edward-Stuart QC, sitting as a deputy High Court judge in R (A) v Coventry City Council  EWHC 34 (Admin)) is to read into section 20(1) the words “under this section” after “requires accommodation”. Put another way, the question would then become, not “does this child require accommodation for one of the listed reasons?” but “does this child require to become a ‘looked after’ child with all that that entails?” There are at least two problems with this. First and foremost, it involves reading into the section words which are not there. Second, Parliament has decided the circumstances in which the duty to accommodate arises and then decided what that duty involves. It is not for the local authority to decide that, because they do not like what the duty to accommodate involves or do not think it appropriate, they do not have to accommodate at all. (Baroness Hale at paragraph 27)
- Most homeless 16 and 17 year olds are in need – 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. (Baroness Hale at paragraph 28 (2)).
- Homeless children 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”. (Baroness Hale at paragraph 28(4))
- Caution should be exercised in reading LAC (2003) 13.…Circular suggests that, even though the section 20(1) criteria are met, the authority have a choice between section 17 and section 20 which is based upon whether the child needs to be “looked after”, it is incorrect. Section 20 involves an evaluative judgment on some matters but not a discretion. (Baroness Hale at paragraph 31).
- Caution should be shown before ceasing a section 20 service – The whole purpose of the leaving care provisions was to ensure that older children who were without family support were given just the sort of help with moving into independent living that children normally expect from their families. Authorities should therefore be slow to conclude that a child was no longer “in need” because he did not need that help or because it could be provided in other ways. (Baroness Hale at paragraph 32).
- Cooperation and passing the buck are not the same thing – This does not mean that the children’s authority can avoid their responsibilities by “passing the buck” to another authority; rather that they can ask another authority to use its powers to help them discharge theirs. They can ask a housing authority, for example, to make a certain amount of suitable accommodation available for them to use in discharging their responsibility to accommodate children under section 20. Section 23(2) gives them great flexibility in the ways in which they can provide accommodation for the children they are looking after, ranging from placing them with families, relatives or other suitable people, placing them in an appropriate children’s home, or “making such other arrangements as . . . seem appropriate to them”. The very flexibility of what the children’s authority can provide supports the construction which we have placed upon section 20(1). (Baroness Hale at paragraph 33)
- The Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051) does not transfer responsibility to accommodate 16 and 17 year olds from Children’s Services to the Homelessness section.The Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051) was introduced for a limited purpose – Until the Order came into force, a child aged 16 or 17 would not have been treated as being in priority need under Part VII of the 1996 Act unless he or she was “vulnerable as a result of … [some] other special reason” – see section 189(1)(c). If a child of that age fell within section 20 of the 1989 Act, he or she would be provided with accommodation. However, if such a child did not fall within section 20, no accommodation would be provided, unless he or she was found to be”vulnerable” – and even then there might have been an argument that being aged 16 or 17 was not a “special reason”. The purpose of the 2002 Order was, as I see it, to fill that lacuna, not to enable a children’s authority to divert its duty under section 20 to the housing authority, thereby emasculating the assistance to be afforded to children of 16 or 17 who “require accommodation”. (Lord Neuberger at paragraph 40).
Bryan McGuire and Peggy Etiebet appeared for Southwark
A transcript of the judgment is found here.