Judge grants permission to bring claim over alleged failure to treat as former relevant child

A High Court judge has granted permission for a judicial review challenge over the London Borough of Lambeth’s alleged failure to treat a vulnerable 17 year old as a “looked after” child, by providing accommodation under the Housing Act, rather than pursuant to the provisions of the Children Act.

In W, R (On the Application Of) v London Borough Of Lambeth [2023] EWHC 702 (Admin), HHJ Karen Walden-Smith, sitting as a judge of the High Court, said that the claimant, W, became homeless on or around her 17th birthday, when she was told there was no room for her when her mother moved housing, after their “fractious relationship” broke down.

The High Court judge noted that the underlying issues in the application were with respect to the housing of homeless children aged 16 or 17, such as W, “under the general homelessness provisions contained within Part 7 of the Housing Act 1996, rather than pursuant to the provisions of Part 3 of the Children Act 1989”.

HHJ Walden-Smith said: “It is argued on behalf of W that the Defendant has inverted the statutory hierarchy by providing precarious accommodation to vulnerable 16/17-year-olds, pursuant to the provisions of Part 7 of the HA 1996, rather than treating them as ‘looked after’ children pursuant to Part 3 of the HA 1989.”

The judge said that when W became homeless around her 17th birthday, she contacted social services. A social worker then gave W an option to “go into care or live in supported accommodation”.

The High Court judge noted that W said she did not wish to go into care, as it “sounded like a children’s home, like the one Tracy Beaker grew up in" and that the supported accommodation option route "appeared to be the only realistic option for me".

Two grounds were submitted for judicial review on behalf of W:

Ground 1 is that Lambeth’s failure to treat her as a former relevant child is unlawful as:

1.1 it was not lawful to provide her with supported accommodation other than pursuant s20 Children Act 1989; and/or

1.2 the defendant council failed to provide her with the necessary information to allow her to make a valid and informed choice between Pt 7 and s20 accommodation and/or failed to make sufficient inquiries to satisfy itself that the Claimant understood that choice;

and hence she was looked after for the requisite qualifying period.

Ground 2 is that the defendant's policy or practice of providing supported accommodation to homeless 16/17-year-olds under Pt 7 Housing Act 1996 is unlawful.

In regard to the timing of the challenge, Lambeth submitted that W is “out of time” for her challenges, which are limited to being with respect to a decision made in December 2020.

HHJ Karen Walden-Smith said: “It is said by the Defendant that W has simply changed her mind about what she wants, long after she was accommodated in supported accommodation pursuant to the provisions of Part 7 of the HA 1996”.

However, it was noted that W contends that she had “no knowledge of the issue or that there was potential illegality until she spoke to a friend who received legal assistance which was in May or June 2022 and that she did not obtain legal advice until June 2022”.

Considering the submissions, the High Court judge noted that the challenge under Ground 2 is a challenge to policy and “while, inevitably, concerned with what happened to W in December 2020, it has a wider ambit, with reliance placed upon the available statistics which supports a contention that this Defendant has been accommodating the majority of its 16 and 17-year-olds under Part 7 of the HA 1996 rather than Part 3 of the CA 1989.”

She added: “Ground 2 is not out of time, the challenge being one relating to the ongoing exercise of a policy which is alleged by W's representatives to run counter to the statutory hierarchy”.

The judge accepted that both challenges under Ground 1.1 and 1.2 were of “wide importance” and “overlap with the issues in Ground 2”. She said that it was appropriate to allow the challenges under Ground 1.1 to proceed to a substantive hearing “with an extension of time and for determination as to whether there should be an extension of time for ground 1.2 to be determined at that hearing”.

Considering Ground 1.2, the High Court judge noted that relevant guidance contained in Homeless 16/17 requires the provision of “realistic and full information” about the package of support that a young person can expect as a looked after child.

Lambeth contends that the written evidence available establishes that W was so advised and the judicial review was “not the correct forum for arguing disputes of fact”, said the High Court judge.

HHJ Karen Walden-Smith said: “The record of why W had decided to accept supported accommodation, namely good independent skills and that she did not want to be accommodated by the local authority, but did want to be considered for supported accommodation, is contradictory.

“The wish for independent living in supported accommodation is consistent with being accommodated pursuant to Part 3 of the CA 1989. Why W stated that she did not want to be accommodated by the Defendant suggests potential confusion, which was not clarified or investigated by the Defendant.”

She added: “The desire for supported accommodation rather than being in a care home or foster care is a natural one for a 16/17-year-olds. However, supported accommodation is likely to be the most appropriate accommodation to be provided pursuant to the Part 3 of the CA 1989 in any event.

“Consequently, the diversion to Part 7 of the HA 199 is arguably an avoidance of the Defendant's responsibilities to W who needed ‘more than a roof’ over her head when she requested support.”

The High Court judge concluded that subject to an extension of time being granted at the substantive hearing, the challenge to the decision on the basis that the council failed to provide the claimant sufficient information to make an informed decision between accepting accommodation provided pursuant to Part 3 of the CA 1989 or Part 7 of the HA 1996, was one which should proceed to a substantive hearing.

Looking at Ground 1.1 and Ground 2, HHJ Karen Walden-Smith noted that in R(M) v Hammersmith and Fulham [2009] UKHL 26, Baroness Hale made it clear that a local authority cannot avoid its responsibilities under Part 3 of the CA 1989 by “shifting them on to the housing department”: "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."

The High Court judge said on this: “It is possible for a competent 16/17-year-olds young person to refuse the support of a local authority and not be coerced into accepting it. However, it is arguable that such a refusal, which must be properly informed, relates to refusal of any support from the local authority children services– both services and accommodation - and not simply services.”

Concluding on whether Grounds 1.1 and 2 could be arguable, she said: “Grounds 1.1 and 2 raise important points of wide implication whereby it is arguable that the Defendant has been wrongly relying on the exception of informed refusal when that informed exception is limited to allowing an older child (a 16 or 17- year- old) to refuse any support of the local authority.

“It is at least arguable that supported accommodation for 16 and 17-year- olds is to be provided under Part 3 of the CA 1989 and not under Part 7 of the HA 1996. Under Part 7 of the HA 1989, the accommodation offered discharges the local authority's housing duties and once the offer of accommodation is accepted there is thereafter no statutory oversight and the child loses the protections and benefits provided pursuant to Part 3 of the CA 1989.

“In those circumstances, it is arguable that the purpose of the statutory scheme to give support beyond accommodation is being subverted by reason of supported accommodation being offered under Part 7 of the HA 1996.”

The High Court Judge granted permission to bring proceedings for judicial review pursuant to Grounds 1.1, 1.2 and Ground 2. However, she added that the challenge on Ground 1.2 is dependent upon permission being granted at the substantive hearing.

Lottie Winson