W, R (on the application of) v London Borough of Lambeth

Permission to seek judicial review should be granted where there is an arguable case that a local authority has used homelessness accommodation to avoid its wider duties towards homeless 16- and 17-year-olds under Part 3 of the Children Act 1989.

An apparent choice of accommodation must be based on full and realistic information about the legal consequences, support and protections attached to each statutory route. A refusal by a competent 16- or 17-year-old must be properly informed and may concern refusal of local-authority support generally, rather than merely refusal of children’s services. A continuing challenge to an allegedly unlawful policy is not necessarily out of time.

W became homeless shortly before her seventeenth birthday following a breakdown in her relationship with her mother. Lambeth accommodated her under Part 7 of the Housing Act 1996, rather than under section 20 of the Children Act 1989.

She sought permission to challenge both the decision affecting her and Lambeth’s policy or practice of accommodating homeless 16- and 17-year-olds under Part 7. She also alleged that she had not received sufficient information to make an informed choice and sought an extension of time for the delayed individual challenge.

1. Permission and time. Permission was granted on Grounds 1.1, 1.2 and 2. Ground 2 was in time because it challenged the continuing operation of an allegedly unlawful policy. Ground 1.1 was allowed to proceed subject to an extension of time. Whether time should also be extended for Ground 1.2 was left for determination at the substantive hearing.
2. Informed choice. It was arguable that W had not received full and realistic information about the consequences of being accommodated under section 20 of the Children Act 1989 or Part 7 of the Housing Act 1996. The information provided did not explain the rights and protections available to a looked-after child, including support, financial assistance and accommodation. The recorded reasons for W’s choice were arguably contradictory and potentially indicated confusion which Lambeth had not clarified or investigated.
3. Statutory hierarchy. R(G) v Southwark LBC [2009] UKHL 26 and R(M) v Hammersmith and Fulham [2009] UKHL 26 supported the arguable proposition that children’s services cannot avoid their responsibilities by transferring responsibility to the housing department. The statutory scheme arguably requires more than the provision of a roof and may require continuing care, support and accommodation after adulthood.
4. Refusal and accommodation. It was arguable that the informed-refusal exception permits a competent 16- or 17-year-old to refuse local-authority support generally, but does not permit the authority to provide supported accommodation under Part 7 while avoiding the protections of Part 3. The substantive court would determine whether the statutory scheme had thereby been subverted.
5. The parties were invited to agree directions for the substantive hearing.

There was no appeal. Lang J. considered the permission application on the papers and expressed concerns about delay and the prospects of permission. Following an oral hearing, the High Court granted permission on the stated grounds, subject to the issues concerning extension of time.