R (on the application of M) (FC) v London Borough of Hammersmith and Fulham

The appeal concerned the proper characterisation of accommodation provided to a 16–17 year old who presented as homeless and whether that accommodation amounted to being "looked after" by the local authority within the meaning of section 22(1) of the Children Act 1989 so as to attract the enhanced duties for eligible, relevant and former relevant children under the Children Act and the Leaving Care regime. The House held that interim accommodation provided by a housing authority under section 188 of the Housing Act 1996 does not, simply by reason of subsequent factual developments, become accommodation provided by the children's services in the exercise of their social services functions under section 20 of the Children Act unless the children's services authority in fact provided or arranged the accommodation or otherwise exercised its section 20 functions.

Key legal principles: (1) section 188 of the Housing Act 1996 imposes a low threshold for an interim duty to accommodate pending enquiries; (2) accommodation is a "looked after" child only if provided by the children's services authority in exercise of social services functions (not merely because the child arguably met section 20 criteria); (3) housing and children's services should have joint protocols and the housing authority should refer uncertain 16–17 year old cases to children's services for assessment; and (4) the label given by the authority does not control where children's services in fact provided accommodation, but an absence of action by children's services means the child was not "looked after" by them.

This was an appeal by judicial review arising from the case of M, a troubled 16–17 year old, who presented to the respondent local authority's housing department in early April 2005 and was provided with temporary bed and breakfast accommodation on 6 April 2005. The appellant sought judicial review to obtain suitable accommodation on release from custody and contended that she was owed duties by the children's services under the Children Act 1989 (as amended by the Children (Leaving Care) Act 2000) including appointment of a social worker and personal adviser and continuing support under section 23C after reaching eighteen.

The principal issues before the House were:

• whether the accommodation provided on 6 April 2005 should be treated as accommodation provided under section 20 of the Children Act 1989 such that M became a "looked after" and hence an "eligible" and subsequently "relevant" child;
• the interplay between Part VII of the Housing Act 1996 (in particular section 188 interim duties and section 193 priority need) and the Children's Act duties under section 20; and
• the consequences, if any, of a housing department providing interim accommodation without referral to children's services for the duties owed to 16–17 year olds.

The House reviewed the facts: M was given temporary accommodation by the housing department and there was no record that children's services had been contacted or had accepted responsibility; subsequent events showed she had significant needs and later became pregnant and reached eighteen while in custody. The Court of Appeal had dismissed the claim and the House of Lords likewise dismissed the appeal.

The court reasoned that section 188 of the Housing Act 1996 requires a low threshold of belief that the applicant may be homeless, eligible and in priority need so that interim accommodation may properly be provided pending enquiries; that this function is separate from the children's services' power and duty under section 20; and that, where children's services did not in fact provide or arrange accommodation or exercise their section 20 functions, the child cannot be said to have been "looked after" by the children's services merely because, with hindsight, the criteria for section 20 were present. The court emphasised the importance of joint protocols and referral by housing departments to children's services in cases of uncertainty but rejected the submission that the court should treat what ought to have happened (an immediate children’s services assessment and section 20 accommodation) as if it had happened.

Appeal dismissed. The House held that interim accommodation provided by a housing authority under section 188 of the Housing Act 1996 does not automatically amount to accommodation provided by the children's services under section 20 of the Children Act 1989; there was no evidence that the children's services authority had provided or arranged accommodation or exercised section 20 functions in this case, so M was not a "looked after" child for the purposes of the Leaving Care duties. The court nonetheless criticised the failure to refer and stressed the need for joint protocols and liaison between housing and children's services.

Permission to apply for judicial review was refused in the High Court. Neuberger LJ subsequently granted permission to appeal. The Court of Appeal (reported at [2006] EWCA Civ 917; [2007] HLR 6) dismissed the claim and the appeal. The House of Lords ([2008] UKHL 14) dismissed the appeal.