R (On The Application of M) (Fc) V London Borough of Hammersmith and Fulham Appellate Committee

A child is “looked after” under section 22(1)(b) of the Children Act 1989 only if the child was actually provided with accommodation in the exercise of social services functions. Accommodation supplied by a housing department under section 188 of the Housing Act 1996 cannot retrospectively be treated as section 20 accommodation merely because children’s services should have intervened.

The section 188 threshold is deliberately low. A housing authority may provide interim accommodation while children’s services determine whether section 20 applies. Housing and children’s services must co-operate, but their functions remain legally distinct. Children’s services cannot evade the consequences of section 20 by applying another label where they themselves provided or arranged the accommodation.

M became homeless shortly after turning 17. The respondent’s housing department accommodated her temporarily under section 188 of the Housing Act 1996, but did not refer her to its children’s services department. After reaching 18, she sought recognition as a former relevant child and the associated support under section 23C of the Children Act 1989.

The High Court refused permission for judicial review. Neuberger LJ granted permission to appeal, after which the Court of Appeal tried and dismissed both the claim and the appeal: [2006] EWCA Civ 917; [2007] HLR 6. The central question before the House was whether housing accommodation could be treated as accommodation supplied in the exercise of social services functions, so that M had been a “looked after” child under section 22(1).

Appeal dismissed unanimously. Baroness Hale of Richmond delivered the leading speech. Lords Hoffmann, Scott of Foscote, Walker of Gestingthorpe and Brown of Eaton-under-Heywood expressly agreed with her reasons.

1. Per Baroness Hale, section 188(1) of the Housing Act 1996 imposes a deliberately low threshold. Where a housing authority has reason to believe that a 16 or 17-year-old may be homeless, eligible and in priority need, it should provide interim accommodation while clarifying whether children’s services owe a duty under section 20 of the Children Act 1989. The initial decision to accommodate M under section 188 was therefore lawful.

2. The functions of housing and children’s services remain legally distinct, including within a unitary authority. Each department exercises the statutory functions delegated to it and cannot perform the other’s functions. Housing should have referred M to children’s services, which should have assessed whether section 20 applied. That failure did not convert housing accommodation into accommodation supplied through social services functions.

3. Section 22(1)(b) of the Children Act 1989 requires the child actually to have been provided with accommodation in the exercise of social services functions. M had never been drawn to the attention of children’s services, and that department had provided or arranged no accommodation or other service for her. She therefore had not been “looked after” for the period needed to become an eligible, relevant or former relevant child.

4. Southwark London Borough Council v D [2007] EWCA Civ 182, H v Wandsworth London Borough Council [2007] EWHC 1082 (Admin), R (S) v Sutton London Borough Council [2007] EWCA Civ 790 and R (L) v Nottinghamshire County Council [2007] EWHC 2364 (Admin) were distinguishable. In each, children’s services had done something which resulted in accommodation being provided. The issue was how that department’s own conduct should be categorised; here, children’s services had done nothing.

5. Obiter, a children’s services authority which itself provides or arranges accommodation in circumstances requiring action under section 20 cannot escape the resulting duties merely by using section 17 or another statutory label. Baroness Hale also favoured a broad reading of “prevented” in section 20(1)(c): the carer need only be prevented from providing suitable accommodation or care. She expressed reservations about treating an informed and competent older child’s wishes as having little significance under section 20(6), since voluntary accommodation was unlikely to have been intended to operate compulsorily against such a child.

1. House of Lords: Dismissed M’s appeal unanimously: [2008] UKHL 14 .
2. Court of Appeal: Having tried the judicial review claim following the grant of permission to appeal, dismissed both the claim and the appeal: [2006] EWCA Civ 917 ; [2007] BLGR 127; [2007] HLR 6.
3. High Court: Refused permission to apply for judicial review.