C & C, R (on the application of) v Nottingham City Council

Accommodation provided by a housing department does not become accommodation under section 20 of the Children Act 1989 merely because children’s services knew of the young person’s circumstances, had advised an application to housing, or failed to act. The accommodation must be provided by children’s services, or result from their action, where the statutory criteria are satisfied. This distinction applies equally to unitary authorities. A housing authority dealing with a 16- or 17-year-old with housing or other complex needs may be required to refer the case to children’s services. A declaration concerning the absence of a joint protocol may nevertheless be refused where the authority recognises the need for one and gives a credible assurance that it is being prepared.

The claimants, who were aged 16 and 17 during the relevant period, had lived in hostels provided by Nottingham City Council’s housing department. They argued that, because children’s services knew of their circumstances or had directed one claimant to seek housing, the accommodation should be treated retrospectively as accommodation provided under section 20 of the Children Act 1989. They also sought permission to challenge the council’s continuing failure to establish a joint protocol between housing and children’s services for homeless 16- and 17-year-olds.

The central issues were whether the accommodation could be treated as section 20 accommodation and whether the absence of a protocol justified a declaration of unlawfulness.

1. Permission refused. The court held that it was not reasonably arguable that the hostel accommodation provided by the housing department was accommodation under section 20 of the Children Act 1989.
2. Section 20(1)(c) imposes a duty to provide accommodation where a child in need requires accommodation because the person caring for the child has been prevented from providing suitable accommodation or care. “Prevented” has a wide meaning and may include relationship breakdown resulting in exclusion from the home. Once the criteria are met, the duty is mandatory.
3. The decision in R (M) v Hammersmith & Fulham LBC [2008] UKHL 14 established a material distinction. Children’s services cannot discharge their functions simply by relying on accommodation provided by a housing authority. Conversely, accommodation provided by the housing department cannot be attributed to children’s services merely because the latter knew of the circumstances, advised a young person to apply for housing, or failed to intervene. The position is the same in a unitary authority as it would be where housing and social services are separate authorities.
4. R (G) v Southwark London Borough Council [2009] UKHL 26 did not assist the claimants. That case concerned accommodation set in train and provided by social services where the section 20 criteria were satisfied. The authority could not avoid section 20 by applying a different label. The present case was materially different because children’s services had not provided or brought about the accommodation.
5. The facts might support other allegations of unlawfulness. A housing authority may be required to refer a 16- or 17-year-old with housing and possibly complex needs to children’s services. An inadequate social-services assessment may also be unlawful. Those possible failures did not establish the claim advanced in these proceedings.
6. The application for a declaration concerning the absence of a joint protocol was also refused. The relevant guidance required a framework for joint assessment and interim accommodation where there was uncertainty. However, the council accepted that a protocol was needed and gave an assurance that it was actively preparing one and expected it within weeks. In those circumstances, a declaration was not justified, although a continuing failure could lead to a different result.