M, R (on the application of) v London Borough of Hammersmith & Fulham

A homeless 16- or 17-year-old is not automatically a child in need under section 17(10) of the Children Act 1989. Under section 188 of the Housing Act 1996, a housing authority may provide interim accommodation where it has reason to believe that the applicant may be homeless, eligible and in priority need. The authority need not decide immediately that a duty under section 20 of the Children Act 1989 applies.

Housing and social-services duties remain separate, parallel and overlapping. Housing staff must consider referral for a social-services assessment where the facts indicate that Children Act duties may arise. Accommodation provided solely under the Housing Act does not make a young person looked after or entitled to leaving-care services. Non-cooperation does not itself discharge existing statutory duties.

M, aged 17, was asked to leave her mother’s home and approached the respondent council’s Housing Department as a homeless person. The council provided temporary accommodation under sections 188 and 189 of the Housing Act 1996 and the 2002 Regulations.

M argued that the council should instead have treated her as a child in need under section 17 of the Children Act 1989 and accommodated her under section 20. She claimed that the accommodation period made her an eligible and subsequently former relevant child entitled to support under the Children (Leaving Care) (England) Regulations 2001.

Newman J refused permission to apply for judicial review. The Court of Appeal considered whether the council had acted unlawfully by dealing with M under the homelessness legislation rather than under Part III of the Children Act, and whether the accommodation provided could count as accommodation under a social-services function.

1. Disposition. Wall LJ gave the lead judgment. Lloyd LJ and Pill LJ agreed. The appeal was dismissed and the application for judicial review failed.
2. Interim homelessness duty. Section 188(1) of the Housing Act 1996 imposes an immediate interim duty where the authority has reason to believe that the applicant may be homeless, eligible for assistance and in priority need. The threshold concerns apparent priority need and precedes the fuller investigation of any duty under section 193. A 16- or 17-year-old who has not been looked after and is not shown to be owed accommodation under section 20 of the Children Act 1989 may fall within Regulation 3(1) of the 2002 Regulations.
3. Children Act accommodation. Homelessness does not automatically make a young person a child in need. The application of section 20(1) and (3) requires consideration of its statutory conditions. On the facts, being asked to leave home did not place M plainly within being lost or abandoned, and her mother’s unwillingness to provide accommodation was not the same as being prevented from doing so. The evidence did not establish that the section 20 duty had arisen.
4. Looked-after status. Accommodation counts for the leaving-care scheme only when provided in the exercise of relevant social-services functions. M had been accommodated under Part VII of the Housing Act 1996. She was therefore never looked after under section 22 of the Children Act 1989, and did not become an eligible, relevant or former relevant child. The agreed period of accommodation would have satisfied the 13-week requirement if the other statutory conditions had been met, but duration alone was insufficient.
5. Guidance for authorities. Pill LJ emphasised that housing duties do not release an authority from its Part III Children Act duties. Where housing staff know facts suggesting that duties under sections 17 and 20 may arise, the authority may have to take steps to enable assessment by social-services staff. That duty is distinct from the immediate section 188 duty. Non-cooperation by a young person does not of itself absolve an authority from existing duties, as illustrated by the observation approved from R(J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin) [2005] 2 FLR 860. These were general observations; no breach was established on M’s facts.
6. The Court distinguished R (Berhe and others) v Hillingdon LBC (2003) 6 CCLR 4710, which concerned assistance provided under Part III of the Children Act. The Court also noted that an inappropriate failure to identify a child in need may be amenable to judicial review.

1. Court of Appeal (Civil Division): Permission was granted by Neuberger LJ on the papers on 26 April 2006. The appeal was heard on 16 June 2006 and dismissed on 5 July 2006.
2. Administrative Court: Newman J refused permission to apply for judicial review on 7 March 2006 and refused permission to appeal.