Berhe & Ors, R (on the application of) v Hillingdon & Anor

For the purposes of the Children Act 1989, “accommodation” bears its ordinary and natural meaning. A local authority cannot avoid the statutory looked-after regime by describing accommodation supplied to a destitute lone child as “housing provision” or as services under another statutory power. Where a child in need requires accommodation because there is no available parent or carer, the substance of what the authority provides is decisive. The detailed scheme governing leaving-care duties contains no warrant for judicially inserting additional age limits or other qualifications which Parliament has not enacted.

Four unaccompanied asylum-seeking children arrived in the United Kingdom destitute and without an available parent or relative. Hillingdon provided each with accommodation, subsistence and related support under assessments said to have been made under section 17 of the Children Act 1989. The claimants, who had since turned 18, sought declarations that they had been “eligible children” and “former relevant children” under the leaving-care provisions introduced by the Children (Leaving Care) Act 2000.

The central issues were whether the statutory definition of a looked-after child included the accommodation provided, and whether the eligibility definition required the prescribed period to begin before the child reached 16.

1. The applications succeeded. Each claimant was declared to have been an eligible child for the purposes of section 19B of the Children Act 1989 and to be a former relevant child for the purposes of section 23C. Each claimant was also declared to be in priority need within Article 4 of the Homelessness (Priority Need for Accommodation) (England) Order 2002.
2. The court rejected the proposed reading of section 19B(2)(b) which would have required the prescribed period to begin after age 14 but before age 16. The statutory scheme was detailed, and its exceptions and qualifications were expressly stated. There was no warrant for adding a further qualification by implication.
3. “Looked after” is a statutory term of art, but “accommodation” in sections 20(1) and 22(1) retains its ordinary and natural meaning. The authority’s description of the provision as “housing provision” did not alter its substance. The claimants required somewhere to live because no parent or carer could provide suitable accommodation in the United Kingdom, and the authority supplied accommodation together with subsistence and other services.
4. The court accepted, in light particularly of R (W) v Lambeth London Borough Council, that there had always been a power to provide accommodation under section 17. It rejected the wider submission that section 116(2) of the Adoption and Children Act 2002 merely clarified the pre-existing law: the amendment instead changed the scope of section 22(1)(b) from 7 November 2002 by expressly excluding accommodation provided under section 17.
5. The court noted that the later departmental Guidance generally presumes that an unaccompanied lone child will fall within section 20 unless an assessment identifies particular factors making section 17 more appropriate. Hillingdon’s practice of effectively reversing that presumption for unaccompanied children over 16 required reconsideration.