S, R (on the application of) v London Borough of Sutton

A local authority cannot avoid its duty under section 20(1) of the Children Act 1989 by directing a child in need towards homelessness assistance and arranging accommodation which the child must fund through state benefits. Where the authority’s arrangements in substance provide the accommodation required, they fulfil the section 20 duty and the child is looked after by the authority.

Whether accommodation with a private person is provided under section 20 is fact-sensitive. A bail condition requiring residence as directed by social services does not, by itself, make the child looked after. The authority’s role in arranging the placement, and whether it clearly established a genuinely private arrangement, are material.

The appellant, aged 17 on her release from a secure training unit, challenged the respondent local authority’s treatment of her under Part III of the Children Act 1989. Her claim concerned two periods.

During the first period, she lived with a family friend while on bail. She contended that the authority had provided that accommodation under section 20(1), with the result that she had been looked after for the 13 weeks required to qualify for the leaving-care duties in section 23B. During the second period, the authority arranged for her to enter a hostel on release, while treating her as homeless and expecting her to pay from state benefits.

Stanley Burnton J, in [2007] EWHC 1196 (Admin), held that neither placement constituted accommodation under section 20, although he declared that the authority had failed lawfully to assess her needs. The appellant appealed on the section 20 and section 23B issues.

1. Appeal allowed in part. The first-period challenge failed, but the placement at Wayside Hostel on the appellant’s release fulfilled the respondent’s obligations under section 20(1) of the Children Act 1989. Those obligations continued when she was released from the secure training unit.

2. A bail condition requiring a child to live and sleep as directed by social services does not automatically place the child in local authority care or establish that accommodation is being provided under section 20(1). Such an order may be made without the social services department’s involvement or knowledge. It cannot alone impose the consequential duties owed to a looked-after child.

3. Whether accommodation with a private person is supplied under section 20 is a question of fact. The local authority’s role in making the arrangement is material. In the first period, social services had not taken the central role described in London Borough of Southwark v D [2007] EWCA Civ 182. The relevant documents instead showed involvement by the Youth Offending Team, which was neither acting for social services nor using its funds. The judge’s finding that the appellant did not appear to the respondent to require accommodation therefore stood.

4. Immediately before the appellant’s release, the respondent owed a section 20(1) duty. Its proposed reliance on the homelessness system was legally mistaken because articles 2 and 3 of the Homelessness (Priority Need for Accommodation) (England) Order 2002 excluded a person owed a section 20 duty from priority need. The respondent’s assessment also lacked a realistic and specific plan for accommodation and community support.

5. The limited choices presented to the appellant did not enable the respondent to avoid its statutory obligations. Section 23(2) did not restrict the authority to foster care or a children’s home, and the evidence did not show that Wayside could not have been used as a section 20 placement. Acceptance of hostel accommodation paid for from benefits obtained on the basis of homelessness could not convert the placement into something outside section 20.

6. Lady Justice Arden additionally considered that section 20(6) requires the child’s wishes and feelings to be included in the assessment preceding the provision of accommodation. Those wishes inform the decision but cannot displace a duty which otherwise arises. Hooper LJ and the Master of the Rolls considered it unnecessary to determine the construction of section 20(6), while accepting that discussion with the child may be appropriate when deciding whether accommodation is required.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 790, unanimously allowed the appeal in part. It declared that the Wayside placement was made pursuant to the respondent’s continuing duty under section 20(1) of the Children Act 1989, while rejecting the challenge concerning the earlier private placement.
2. High Court, Administrative Court: Stanley Burnton J, in [2007] EWHC 1196 (Admin), held that the appellant had not been accommodated under section 20 during either relevant period. He nevertheless declared that the respondent had failed to carry out a lawful assessment of her needs.