Children in need

The responsibilities of local authorities for housing homeless 16 and 17-year-olds has been clarified by a recent House of Lords judgement, writes Rosalind Coe QC.

Baroness Hale delivered the main speech in R (On the Application of G) (FC) D The London Borough of Southwark (2009) UKHL 26. From this, it is clear that if a child of 16 or 17 meets the s.20 Children Act 1989 criteria (a “child in need”), it is not open to a local authority to avoid its obligations under that section by arranging for that child to be accommodated under s.17 (by arranging for accommodation by a local housing authority) or otherwise.  

Insofar as it has previously been suggested that the local authority has a choice between s.17 and s.20 based on whether the child needs to be “looked after”, that is incorrect. S.20 involves an evaluative judgment on some matters, but not a discretion.

This affirms the observations in R(M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14.

Cost concerns

On the face of it, this decision has potentially huge financial and resource implications, particularly for those local authorities who do not provide a housing function, such as county councils. However, at paragraph 33 of her speech, Baroness Hale said:

“Finally, something should be said about co-operation between the authorities, which is stressed in all the guidance ...  S.27 of the 1989 Act empowers a children’s authority to ask other authorities including any local housing authority, for ‘help in the exercise of any of their functions’ under Part III; the requested authority must provide that help if it is compatible with their own statutory or other duties and does not unduly prejudice the discharge of any of their own functions. This does not mean that the children’s authority can avoid their responsibilities by ‘passing the buck’ to another authority; rather 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 s.20.”

The House of Lords clearly envisaged that there would continue to be a close partnership between children’s services and housing authorities to support local authority responsibilities under the Children Act for meeting the needs of children in their area.  

Co-operation assumed

The question arises, therefore as to how this “partnership” will work? Co-operation and a constructive approach enabling the sharing of resources to meet the needs of children are assumed. However, whilst s.27(2) requires an authority to comply with a request from another,  this is subject to its compatibility with their other duties and obligations or undue prejudice. It seems likely that were such a request to be refused in a future case that refusal could only be tested as to its validity by way of judicial review. The question arises then as to when such a refusal would be reasonable.

Again, the starting point must be that this is the clear intention of the statute. Similarly the very fact that the House of Lords assumed that such co-operation will be relevant and applicable may be decisive. There is a large amount of guidance for local and other authorities and the emphasis is on co-operation to prevent homelessness.

However in the case of R v Northavon District Council (ex parte Smith) [1994] 2 AC 402, a housing authority provided a man and his family with temporary accommodation in accordance with their statutory obligations. The family were found to be intentionally homeless but had priority needs because of the dependent children.

In temporary accommodation the family were liable to be ejected giving rise to an obligation on the social services department under s.17 Children Act 1989. The social services department declined and instead, pursuant to s.27 required the housing authority to provide a full tenancy suitable for the family. In their turn the housing authority declined on the basis that having declared the family intentionally homeless, they could not offer accommodation.

Reason to refuse

Lord Templeman emphasised the need to prevent the functions of the housing authority and the functions of a social services authority becoming blurred. There is a distinction between co-operation and the preservation of the separation of powers between public authorities. In respect of s.27 he said:

“... Parliament intended that the requesting local authority and the requested authority should co-operate in exercising their respective and different functions under the relevant statutory schemes. Parliament did not, however, intend that the nature or scope of those respective functions of the requesting local authority and the requested authority should change, as a result of the imposition of the duty to co-operate”.

In fact, in that case the social services department and the housing authority had co-operated to ensure that the family were not on the streets.

With regard to homeless 16 and 17 year-olds who satisfy the s.20 criteria, therefore, a housing authority may very well be able to argue that their refusal is reasonable, subject always to this emphasis on co-operation.

R v Northavon was relied on in R v Somerset County Council (ex parte Prospects Care Services Limited) (2000) 1 FLR 636. Mr Justice Dyson summarised the Northavon case giving his view that the local authority had been attempting to use s.27(2) to enlarge the statutory housing powers of the housing authority. He said:

“Parliament intended that housing authorities should provide accommodation to certain classes of person. These did not include the persons who were in the situation in which the applicant and the family found themselves. The effect of acceding to the applicant’s argument would be to subvert that intention”.

In the case of homeless 16 and 17 year olds, the position might not be so clear-cut. Nonetheless referring to Baroness Hale’s comments, the s.17/s.20 provisions do not provide a choice or discretion. The obligations of the housing authority in respect of homeless children are much closer to the (newly interpreted) obligations of the local authority.

Finally, in the situation under consideration, s.29 Children Act does not seem to make provision for the recoupment of the cost of the provision of accommodation by a housing authority at the request of a local authority. This is likely, if correct, to be a relief to local authorities but imposes a financial burden on the housing authority which they could argue is prejudicial to the discharge of their functions. They thus might reasonably refuse to help. They would in effect be providing free accommodation to a person in respect of whom they had no obligations and in circumstances which would prejudice their financial position.

It will remain to be seen what situations arise and what approach (inevitably based on resources) is taken.  

Rosalind Coe QC is a barrister at 7 Bedford Row. She is very grateful to Michael Oliver of Leicestershire County Council for his help with this article.