R (on the application of G) v Southwark London Borough Council (2009) UKHL 26

This is an important ruling from the House of Lords setting out the relevant factors local authorities must consider when seeking to exercise their functions in relation to providing or assisting young people to find suitable accommodation. Changes to the Housing Act 1996 bought in by the Homelessness (Priority Need for Accommodation) (England) Order 2002 [‘the 2002 Order’] provided that those aged 16-17 without appropriate accommodation should be deemed in ‘priority need’ for the purposes of that Act and, provided that the other criteria were met, therefore entitled to assistance from a local authority housing department. Following these changes some local authorities had sought to meet many young people’s identified need for accommodation by accessing the general housing stock under this provision rather than via the social services department’s duty to accommodate which exists under s.20 of the Children Act 1989 [‘CA’]. The benefit to the local authority of providing support in this way was that it then avoided any on going duty to the young person which would otherwise have arisen by virtue of the duties set out in the Children (Leaving Care) Act 2000.

In this instance the appellant (G) had, after leaving his family home at 17, attended the local authority’s social services department requesting he be accommodated under the s20 CA duty. The local authority had taken the view that they did not owe him a duty under s20 CA, but could assist him to find accommodation under the powers set out in s.17 CA and sought to do this by way of a referral to their housing department who were then so empowered to provide him with suitable accommodation under part VII of the Housing Act 1996. G challenged this decision on the basis that he met the criteria as set out in s20 CA and therefore ‘required accommodation’: this should have been provided by way of s.20 so that he would benefit from the additional support afforded young people in the care of the Local Authority under duties set out in the Children (Leaving Care) Act 2000. The Local Authority had argued that G’s approach was too simplistic and that they should be allowed to consider all other sources of accommodation available to the child when ascertaining whether it was necessary for them to exercise their duties under s20 CA, because if other accommodation was available, then the duty would not arise and the young person could be merely assisted to secure appropriate accommodation under the powers set out in s17 CA.

The House of Lords, expressing some surprise that the matter should have proceeded to this stage following the ruling in R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, allowed the appeal. They rejected the Local Authority’s argument on the basis that article 3 of the 2002 Order had specifically excluded those young people from provision by way of the Housing Act 1996 if they met the criteria for assistance as set out in s20 CA or were within the definition of a ‘relevant child’ as defined by the Children (Leaving Care) Act 2000. So whilst some young people might not qualify for assistance by way of s20 CA it was not open for a local authority to seek to avoid their duty under s20 CA because the young person could now be assisted by way of the Housing Act 1996. Baroness Hale commented that the Local Authority Circular LAC (2003) 13, Guidance on Accommodating Children in Need and their Families, had made clear that the powers under s17 CA would normally only be used to accommodate young people with their families. Whilst it may be possible to assist a young person under s17 rather than by way of s20 CA this would be limited to those cases where the young person had refused, with capacity, assistance by way of s20 or where there was no duty under s20, e.g. the young person had been living independently for some time, with a job and somewhere to live, but had lost his accommodation and become homeless. In such circumstances the House of Lords concluded he would not fall within s.20(1) but would fall within the 2002 Order and be in priority need under the 1996 Act.

Furthermore, a local authority could not seek to rely on the provisions as set out in s27 CA (which allows them to ask other statutory services to assist them to meet their functions) to effectively side step their responsibilities under s20 CA by referring the young person to the Housing Department.

G had demonstrated that he met the criteria for assistance by way of s20 CA and so the Local Authority had therefore to provide assistance by way of s20 CA: they could not avoid the responsibilities as set out in the Children (Leaving Care) Act 2000 by giving the support they had a different label.

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