R (on the application of G) v London Borough of Southwark

The House held that where a child of 16 or 17 is a "child in need" and appears to require accommodation for one of the reasons in section 20(1)(a)–(c) of the Children Act 1989, the local children's services authority must provide accommodation under section 20. The authority may not avoid that duty by treating the child as someone who merely needs "help with accommodation" under the general duties in section 17, nor may it re-label the accommodation as provided under the Housing Act 1996 to escape the section 20 obligation. The decision applies the statutory tests in section 20(1) and related provisions (including section 17(10) and schedule 2, para 19B) and rejects a construction that reads into section 20 words limiting the duty to cases where the authority wishes the child to become a "looked after" child.

This was an appeal by judicial review against the local authority's decision not to accommodate a 17 year old under section 20(1) of the Children Act 1989 but instead to treat his needs as capable of being met by housing assistance. The appellant had been excluded from home, was "sofa surfing" and was accepted to be a "child in need" within section 17(10). After a core assessment the children's services concluded his needs could be met by housing and support agencies and declined to accommodate him under section 20. Judicial review was brought; the first instance judge dismissed the claim and the Court of Appeal, by majority, also dismissed it. The appellant appealed to the House of Lords.

The central legal issue was statutory construction: whether the factual criteria in section 20(1) themselves trigger a duty to accommodate (subject to the normal evaluative judgments) or whether children's services may refuse to use section 20 where they judge that the child's needs can be met by other housing duties or by assistance under section 17. The House analysed the interaction between the Children Act 1989 (notably sections 20 and 17 and the leaving care provisions in schedule 2 and sections 23A–23C) and the homelessness/housing regime under Part VII of the Housing Act 1996 and the Homelessness (Priority Need for Accommodation) (England) Order 2002.

The court framed issues as: (i) whether the child was a child in need and within the local authority area; (ii) whether he appeared to require accommodation for one of the listed reasons in section 20(1); (iii) whether the authority's decision to provide housing assistance instead could lawfully displace the section 20 duty; and (iv) how the duties under the Children Act and Housing Act interrelate, including the effect of the 2002 Order.

The House concluded that all the required factual elements in section 20(1) had been established on the facts and that the children's services authority were not entitled to avoid the specific statutory duty by relying on housing duties or the section 17 general duty. The 2002 Order does not permit circular reasoning whereby a child removed from the 2002 Order by reason of falling within section 20 could be put back into priority need by a decision that he does not "require accommodation" under section 20. The appeal was allowed and the court held that the appellant had been accommodated under section 20(1) from 11 September 2007 and thus became an "eligible" and subsequently a "former relevant" child for the purposes of the Act.

Appeal allowed. The House held that where a 16 or 17 year old who is a "child in need" appears to require accommodation for one of the reasons in section 20(1)(a)–(c) of the Children Act 1989, the children's services authority must provide accommodation under section 20; it may not evade that duty by re-labelling the need as merely assistance under section 17 or by relying on housing duties under the Housing Act 1996. On the facts the section 20 duty had arisen and the appellant was accommodated under section 20 from 11 September 2007.

Judicial review brought CO/8543/2007 (Simon J) — claim dismissed 15 November 2007. Court of Appeal, [2008] EWCA Civ 877 ([2009] 1 WLR 34) — majority dismissed the appeal (Rix LJ dissenting). House of Lords allowed the appeal [2009] UKHL 26.