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

When the criteria in section 20(1) of the Children Act 1989 are met, a children's services authority owes the child a mandatory individual duty to provide accommodation. The question is whether the child requires accommodation for a listed reason, not whether the authority considers that the child should become looked after.

The possible availability of accommodation under Part VII of the Housing Act 1996 does not displace that duty. Nor may the authority rely on its general powers under section 17 or relabel accommodation after the duty has arisen. Section 20 contains evaluative questions, but gives no discretion to choose another statutory route once those questions are answered in the child's favour.

The appellant, anonymised as A in the reasons, was aged 17 when his mother excluded him from the family home. After sleeping on friends' sofas and in cars, he asked the respondent's children's services department to assess him and accommodate him under section 20(1) of the Children Act 1989. The department assessed him as homeless and in need but decided that accommodation and referrals under other statutory arrangements would suffice.

Simon J dismissed A's claim for judicial review. A majority of the Court of Appeal dismissed his appeal in [2008] EWCA Civ 877, [2009] 1 WLR 34; Rix LJ dissented. The central issue before the House was whether the possible availability of housing assistance under Part VII of the Housing Act 1996, or support under section 17 of the 1989 Act, permitted the children's authority to decline the otherwise applicable section 20(1) duty.

1. Disposition. The House unanimously allowed the appeal. Baroness Hale delivered the leading opinion. Lord Hope, Lord Walker, Lord Mance and Lord Neuberger agreed with her reasons. A had been accommodated under section 20(1) of the Children Act 1989 from 11 September 2007. He consequently became an eligible child under Schedule 2 paragraph 19B(2) and later a former relevant child under section 23C(1).

2. Nature of the section 20 duty. Per Baroness Hale, section 20(1) requires a sequence of statutory judgments: whether the applicant is a child in need within the authority's area; whether the child appears to require accommodation; whether that need results from one of the circumstances in paragraphs (a) to (c); and what effect should be given to the child's wishes and the position of those with parental responsibility. Some questions require evaluation, but the authority has no discretion once the criteria are satisfied.

3. Relationship with other statutory powers. Per Baroness Hale, section 17 creates a general framework duty and associated powers. It cannot displace the specific individual duty under section 20. The reasoning in R (G) v Barnet London Borough Council [2003] UKHL 57 supported that distinction. Likewise, R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14 supported the primacy of children's services provision over homelessness provision for children satisfying section 20.

4. Housing provision was no alternative. The Homelessness (Priority Need for Accommodation) (England) Order 2002 expressly excluded children to whom a section 20 duty was owed. It was circular to deny the section 20 duty because the child might qualify under that Order. The court could not insert the words “under this section” after “requires accommodation” or substitute a broader inquiry into whether the child needed to become looked after. Lord Neuberger gave additional concurring reasons to the same effect.

5. Application. Per Baroness Hale, every applicable criterion was satisfied. A homeless child sleeping on sofas and in cars required accommodation, rather than merely help obtaining access to an existing home. His mother was “prevented” from providing accommodation within section 20(1)(c), notwithstanding that her exclusion of him was deliberate. He wanted section 20 accommodation. The authority could not side-step the resulting duty by assigning the accommodation another statutory label.

6. Further guidance. Baroness Hale observed that section 20 is not coercive: a competent 16- or 17-year-old may refuse its services. A children's authority may seek practical assistance from a housing authority under section 27, but may not transfer its responsibility. The duty may end when its criteria cease to be met, although authorities should be slow to conclude that an older child without family support is no longer in need merely because support could be provided by another route.

1. House of Lords: Unanimously allowed the appeal in [2009] UKHL 26. The majority decision of the Court of Appeal was reversed, and the appellant was declared to have been accommodated under section 20(1) of the Children Act 1989.
2. Court of Appeal: By a majority, dismissed the appeal in [2008] EWCA Civ 877, [2009] 1 WLR 34. Rix LJ dissented.
3. High Court: Simon J dismissed the judicial review claim, holding that the section 20(1) criteria were not met: CO/8543/2007, 15 November 2007.