R (on the application of M) v Hammersmith & Fulham London Borough Council [2006] EWCA Civ 917

The claimant (M) applied for judicial review of a decision of the defendant local authority to provide her with temporary accommodation under the Housing Act 1996 and the Homelessness (Priority Need for Accommodation) (England) Order 2002, and sought a declaration that she was a “former relevant child” under the Children Act 1989 s.23C and the Children (Leaving Care) (England) Regulations 2001. (The 2001 Regulations).

At the age of 17, M had left her family home following the breakdown of her relationship with her mother and presented herself to a local authority as homeless. The local authority had treated M as unintentionally homeless and in priority need under the 1996 Act, and it provided her with temporary accommodation under sections 188 and 189 of the Act.   In order to qualify for assistance under the 2001 Regulations the local authority needed to have provided M with temporary accommodation for a period of more than 13 weeks, which it had done, but not, it said, in the exercise of social services functions owed towards children.

M submitted that the local authority had acted unlawfully by treating her merely as unintentionally homeless and in priority need under the 1996 Act, and that instead it should have treated her as a child in need to whom the provisions of the 2001 Regulations applied and accommodated her under  section 20 of the 1989 Act. M also submitted that she was an “eligible” and a “relevant child” within Schedule 2 paragraph 19(B) (2) and section 23A (2) of the 1989 Act and that the local authority had unlawfully deprived her of the services that flowed from that status, by seeing what it had provided her with as housing, as opposed to accommodation.

The Court of Appeal held that M had never been provided by the local authority with accommodation in the exercise of any functions of the 1989 Act that were “social services functions” within the meaning of the Local Authority Social Services Act 1970.  She had never been a child who was “looked after” by the local authority within section 22(1) of the 1989 Act, and never either an “eligible” child or a “relevant” child under the 1989 Act.  Not every 17-year-old who presented herself to a local authority as homeless was automatically a “child in need” under section 17 of the 1989 Act.  On the facts M was not a child in need when she presented herself to the local authority.  She was plainly not disabled and there was nothing in the evidence to suggest that she was either physically or mentally unwell.  The local authority was entitled, as a matter of law, to deal with M under the 1996 Act and was not required to accommodate her under section 20 of the 1989 Act.  There was nothing in the evidence that would have required the local authority to designate M as a child in need at any point between the date when she was placed in the temporary accommodation and the date when she reached her 18th birthday, or that rendered it unlawful for the local authority to continue to deal with her under the provisions of the 1996 Act.  M was not a “relevant child” within section 23A (2) (b) of the 1989 Act.

On the evidence, she could properly have appeared to the local authority to be someone to whom Article 3(1) of the 2002 Order applied.  M had fulfilled the criteria laid down in section 188 of the 1996 Act, and it was, accordingly, lawful for the local authority to have reason to believe that she was a person in priority need under the 1996 Act.  Since section 188 of the 1996 Act only required the local authority to have “reason to believe” that the terms of the sub-section were met, it was not incumbent on the housing officer dealing with M to assume that she was a child in need under the 1989 Act. The Homelessness Code of Guidance for Local Authorities, which complemented the Framework for the Assessment of Children in Need and their Families, did not advance M’s case.  M was not found to be a relevant child at the date when she was provided with the temporary accommodation.
Application refused.

Commentary

This case is important for children who want assistance in finding supported living at the age of 16 or 17 because it shows that just because one is a child, one does not have to be seen as a child in need, or a child in need of being cared for or accommodated under s20, and hence fostered. If one is accommodated under s20, one must either be placed in a registered children’s home or fostered, and if one is fostered one must be fostered to a foster parent under the fostering regulations. Not all supported living for young people is run by foster parents, and a foster child is not a tenant.

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