W, R (on the application of) v North Lincolnshire Council

A local authority must not use Children Act 1989 section 17 to avoid a specific accommodation duty under section 20 where, on the facts, the section 20 duty arises. The child’s wishes and feelings must be ascertained and given due consideration, but they are not automatically determinative. A child’s reluctance to engage with services or difficulties in accommodation do not, without more, establish that section 20 accommodation would seriously prejudice welfare.

The claimant, aged 17, had previously been accommodated by the defendant before reaching 16. Following his release from custody, the council provided bed-and-breakfast accommodation and financial support under section 17 of the Children Act 1989, but refused to accommodate him under section 20 or treat him as an eligible child entitled to leaving-care support.

The judicial review concerned whether the council had lawfully classified the assistance as section 17 provision and whether the claimant’s accommodation history entitled him to eligible-child status.

1. Claim succeeded. The court declared that the claimant had been accommodated by the council under section 20 of the Children Act 1989 since 6 May 2008 and that he was an eligible child. The council was ordered to pay the claimant’s costs.
2. It was for the local authority to determine whether the claimant appeared to fall within section 20, subject to rationality review. The claimant’s circumstances were a strong factual fit for section 20(1)(c), since neither parent could provide suitable accommodation or care and he had previously depended on the authority.
3. Following R (H and another) v Wandsworth Council and another, the council could not provide accommodation under section 17 where, on the facts, it was also subject to the specific duty in section 20. The statutory label chosen by the authority did not determine the legal character of the accommodation.
4. The duty under section 20(6) arose before accommodation was provided. The council had to ascertain and give due consideration to the claimant’s wishes and feelings. Those wishes were not determinative, particularly where the claimant misunderstood the consequences of being looked after.
5. The council’s conclusion that section 20 accommodation would seriously prejudice the claimant’s welfare because of his previous reluctance to remain in accommodation and offending behaviour was unsustainable. Those difficulties indicated a need for support rather than a reason to avoid the statutory duty. Permission to appeal was refused.

This was a first-instance judicial review. The judgment referred to earlier decisions concerning the interaction between sections 17 and 20 of the Children Act 1989, but no appeal in this case was described.