G, R (on the application of) v London Borough of Southwark

An important and disputed question about the scope of a statutory accommodation duty may justify general permission to appeal and an expedited substantive hearing, rather than a rushed determination. At the interim stage, the Court of Appeal should be slow to prescribe particular accommodation where a local authority must balance competing claims on its existing stock. A conditional undertaking to provide suitable accommodation may be accepted pending the appeal, provided it is expressly without prejudice to the authority’s legal position and cannot be used to establish the statutory duty at the final hearing. The judgment did not decide whether the duty under the Children Act 1989 arose on the facts.

The appellant, aged seventeen, sought a declaration that the local authority owed him a duty to provide accommodation under section 20 of the Children Act 1989. The authority disputed that the duty arose and maintained that its obligations were sufficiently met by assistance under the Housing Act. The application arose from a decision of Simon J dated 15 November 2007. The appellant also relied on the Homelessness Priority Need for Accommodation (England) Order 2002.

The Court of Appeal considered that the scope of section 20 raised an important issue requiring fuller consideration. The central issue was whether the statutory accommodation duty arose on the circumstances disclosed by the authority’s assessment.

1. Permission and adjournment. Permission to appeal was granted generally because the scope of section 20 of the Children Act 1989 raised an important point. The court considered that the issue should not be determined within the limited time available, particularly since judgment might need to be reserved and the practical position would then be unchanged. The appeal was adjourned for an expedited hearing before three Lord Justices.
2. Interim relief. The court refused to direct the authority to provide accommodation at Gypsy Hill. It would be wrong to interfere in detail with the authority’s allocation of existing accommodation, having regard to its duties to the appellant and to other homeless young people and applicants. The court therefore left the choice of suitable accommodation to the authority’s procedures.
3. Undertaking. The court accepted an undertaking that, provided the appellant presented himself to the authority and cooperated with its procedures, suitable accommodation would be made available until determination of the appeal or further order. The undertaking was fair in the circumstances and provided appropriate interim protection.
4. Without prejudice effect. It was agreed that any accommodation provided would be without prejudice to the authority’s position on the extent of its statutory duties. The provision of accommodation could not therefore be relied on at the substantive hearing as supporting an argument that section 20 applied. The court did not determine the merits of that question.
5. Other legislation. The court was not impressed by the appellant’s independent argument under the Homelessness Priority Need for Accommodation (England) Order 2002, which appeared relevant only if a section 20 duty were first established.

1. Court of Appeal (Civil Division). Permission to appeal was granted generally. Interim relief requiring accommodation at Gypsy Hill was refused, an undertaking for suitable accommodation was accepted, and the appeal was adjourned for an expedited hearing.
2. High Court, Queen’s Bench Division. Simon J decided the matter on 15 November 2007. The Court of Appeal granted permission to appeal from that decision but did not determine the substantive appeal.