H & Ors v London Borough Of Wandsworth & Ors

Where a local authority provides accommodation to a child in need and the conditions in section 20(1) of the Children Act 1989 are met, it must treat the accommodation as provided under section 20. It cannot avoid the resulting looked-after status by labelling the provision an exercise of section 17. The authority must make the section 20 judgments rationally and without distorting them to exclude the duty. Section 20(6) concerns the child’s wishes and feelings about whether accommodation is required and its form; it does not create a choice between sections 17 and 20. Actual accommodation must be distinguished from help with accommodation. Where only help is provided, section 20 and the looked-after consequences do not arise. Whether provision is actual and continuing is ultimately a question of fact.

Three unconnected judicial review claims by unaccompanied asylum-seeking children were heard together because they raised a common question under the Children Act 1989: whether a local authority could provide accommodation under section 17 when, on the facts, it was also under a duty to provide it under section 20.

The classification affected whether the claimants were looked-after children immediately before reaching 18 and therefore former relevant children entitled to leaving-care services. In the Wandsworth and Hackney cases, the authorities had provided accommodation while maintaining that they acted under section 17. In the Islington case, the claimant had first been accommodated in a hotel, then obtained private accommodation for which Islington paid only the deposit. The court also considered the lawfulness and meaning of departmental guidance, and whether the statutory 13-week threshold was met.

1. Wandsworth and Hackney. The authorities had assessed each claimant as a child in need who required accommodation. The relevant conditions in section 20(1) were therefore engaged. Once accommodation was actually provided, it was provided in discharge of the specific duty under section 20, not merely under the general duty or power in section 17. The authorities could not finesse away that duty by choosing a different statutory label.
2. The judgments required before section 20(1) applies remain matters initially for the local authority, subject to rationality review. The authority must act rationally and cannot distort those judgments to exclude the statutory duty. Section 20(6) operates before accommodation is provided, rather than before the duty under section 20(1) arises. It permits consideration of the child’s wishes and feelings about whether accommodation is required and about its form and manner, including the type of placement. It does not permit the authority to require a choice between sections 17 and 20. Section 20(11) concerns the effect of a child aged 16 or over agreeing to accommodation despite parental objection and does not alter that construction.
3. The authority must distinguish actual accommodation from help with accommodation. Where a child needs only assistance, such as limited funding, and the authority provides no more than that assistance, the section 20 duty and looked-after consequences do not arise. The decision must be made without regard to whether the child will thereby enter the looked-after system.
4. Applying that approach, Wandsworth’s and Hackney’s assessments and conduct showed that accommodation, rather than mere help with accommodation, had been provided. Each claimant became looked after and, on reaching 18 after the prescribed period, a former relevant child. The reasoning in R(G) v Barnet London Borough Council [2004] 2 AC 208, distinguishing general or framework duties under section 17 from specific duties, supported that conclusion. The approach in R v London Borough of Bexley ex parte B 31 July 1995 was also followed.
5. Islington. The claimant was looked after while accommodated at the Eleanor Hotel, but for less than 13 weeks. On the facts, Islington’s later payment of a deposit for a private tenancy was either merely help with accommodation or a one-off act, not continuing provision of accommodation. The claimant therefore did not satisfy the prescribed period and was not a former relevant child. London Borough of Southwark v D [2007] EWCA Civ 182 confirmed that whether accommodation was provided, and whether the arrangement was continuing, was a question of fact; its facts involved continuing provision and did not govern this case.
6. The guidance in LAC(2003)13 was not unlawful, but was confusing and had the potential to mislead. It correctly distinguished accommodation from help with accommodation, although local authorities should decide that issue without reference to the consequences of looked-after status. The claim challenging the guidance was dismissed.
7. The Wandsworth and Hackney claims succeeded, with declarations and consequential orders. The Islington claim was dismissed. Costs were ordered against Wandsworth and Hackney in their respective cases, with no order as to costs in the Islington case and no order as to costs concerning the Secretary of State. Permission to appeal was refused, subject to any renewed application to the Court of Appeal running from receipt of the approved judgment.

not stated in the judgment.