Children under 18 may be 'looked after' by local authorities under a number of legal arrangements.
A recent decision by the Court of Appeal considered the responsibility of the local authority towards a 17-year-old boy who had nowhere to live but who, it deemed, was merely in need of help in obtaining accommodation.
The boy became homeless after his relationship with his mother had deteriorated to the point where it was considered irreparable. He spent some months sleeping at friends’ houses and in cars before he approached the London Borough of Southwark Council for help, asking it to consider his needs under the Children Act 1989 (ChA). The Council provided him with bed and breakfast accommodation whilst his claim was being considered.
In a case such as this there are two remedies available under the ChA. If it is considered necessary to provide accommodation (under Section 20), then the child becomes a ‘looked after child’. If the child remains looked after for a substantial period of time, the local authority has additional responsibilities, for example under the Children (Leaving Care) Act 2000. These responsibilities can last up until the young person’s 21st birthday or beyond if he or she is in a programme of education or training which takes them past that age. If, however, the only service deemed necessary is to assist the child in finding accommodation (under Section 17 of the ChA), no further duties fall on the local authority.
Southwark Council concluded that as the boy did not have any additional vulnerabilities or needs and was a resourceful teenager, he was not in need of help under Section 20 of the ChA. In its view, his needs were primarily housing and education and the former could be met by the housing department. The boy sought a judicial review of the decision that he did not need to be provided with accommodation, but the judge concluded it was a matter for the Council to determine. However, the Court of Appeal ordered a full hearing of the appeal.
When this was heard, the Court of Appeal dismissed the boy’s application. In its view, the Council had decided that the boy was a resourceful teenager who was capable of finding accommodation if he were given assistance to do so. That was a decision that was legally open to the local authority to make and it was not manifestly unreasonable. It was not for the Court to ‘second-guess their evaluation of the position’.
However, the decision was reached by a 2-1 majority, with one judge giving a powerful dissenting judgment. In his view, in a case within section 20(1), the ChA regime has primacy over the Housing Act 1988 (HA) regime and it was therefore incorrect for the Council to conclude that where the housing department was obliged to provide accommodation under the HA, there was no need for it to provide, and therefore the child did not require, accommodation for the purposes of section 20(1) of the ChA. In the dissenting judge’s view, the test as to whether a child’s situation meets one of the three conditions in which a local authority ‘shall provide accommodation for any child in need within their area who appears to them to require accommodation’ is a narrow test. This means that if a child satisfies one of the criteria, then the required accommodation must be provided. The three criteria are that:
• there is nobody to care for them;
• they have been abandoned or lost; or
• the person caring for them is prevented from providing them with suitable care or accommodation.
Following the ruling in this case, the situation remains uncertain. It is likely that there will be an appeal to the House of Lords, which it is hoped will clarify the position.