Cunningham, R (on the application of) v Hertfordshire County Council & Anor

Under section 20(1) of the Children Act 1989, the accommodation duty arises only when it appears to the local authority that a child in need requires accommodation. That is a fact-sensitive judgment reviewable on conventional public-law grounds.

A suitable private arrangement made independently by a parent and a relative or friend may mean that the child does not require accommodation. The duty is not triggered merely because the arrangement is temporary, emergency-based, or made without an understanding of public funding. If the carer gives notice that accommodation will end, the duty may arise from that date.

Mrs Cunningham appealed from Hickinbottom J’s dismissal, on 8 July 2015, of her judicial review claim against Hertfordshire County Council. She had taken in her grandson R after his mother was arrested. Hertfordshire had made contingency plans but played no part in the private arrangement between R’s mother and Mrs Cunningham.

The appeal concerned whether R appeared to Hertfordshire to require accommodation under section 20(1) of the Children Act 1989 on 17 October 2012, and whether he consequently became a looked after child entitled to statutory support.

Appeal dismissed. Hickinbottom J was correct to conclude that Hertfordshire had not acted unlawfully in deciding that the trigger for the section 20(1) duty was absent.

1. Section 20(1) of the Children Act 1989 requires accommodation only where it appears to the local authority that a child in need within its area requires accommodation. That is an intensely fact-sensitive assessment for the authority. Its conclusion is challengeable on conventional public-law grounds, including that it was not reasonably open to the authority.
2. The authorities concerning looked after children, including R(A) v Croydon London Borough Council [2009] UKSC 8, R(A) v Croydon London Borough Council [2008] EWCA Civ 1445 and R(G) v Southwark London Borough Council [2009] UKHL 26, did not establish that every informal family arrangement engages section 20. The cases relied on involved substantial local-authority participation in arranging accommodation, sometimes coupled with misleading indications that public support would be available.
3. The concept of informed consent in Southwark Borough Council v D [2007] EWCA Civ 182 was fact-specific. It did not create a general rule that a private arrangement becomes a statutory arrangement whenever the relative or friend is unaware of possible public funding.
4. The temporary or emergency nature of accommodation does not determine whether section 20 applies. The need may be short-lived, and a child may be accommodated under section 20 for less than 24 hours without immediately becoming looked after. The dicta in D concerning immediate looked-after status were disapproved in R (GE) Eritrea v Secretary of State for the Home Department.
5. On the facts, Mrs Cunningham and R’s mother made an independent arrangement which Hertfordshire neither encouraged nor facilitated. The contingency plans and the possible use of police protection powers did not establish that R required accommodation from Hertfordshire. The position did not change when the likely duration of the arrangement became clearer. The court did not determine the legal implications of R’s move to Derby.

The judge’s factual findings were open to him and unassailable. The appeal was dismissed.

1. Court of Appeal (Civil Division) — The appeal was dismissed on 11 November 2016: [2016] EWCA Civ 1108.
2. High Court of Justice, Queen’s Bench Division, Administrative Court — Hickinbottom J dismissed Mrs Cunningham’s judicial review claim on 8 July 2015.