(House of Lords; Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Mance, Lord Neuberger of Abbotsbury; 20 May 2009)
When the child was 17 years old he was thrown out of his home by his mother; he genuinely could not continue living with her. After the failure of an attempted reconciliation, organised by the local authority's housing department, the child slept on friends' sofas and in their cars. He then presented himself to the authority social services department with a solicitors' letter requesting immediate accommodation. On the following day his solicitors requested an assessment under Children Act 1989, s 17, and asked that accommodation be provided pursuant to s 20. The authority provided the child with bed and breakfast accommodation through the housing department, pending completion of the s 17 assessment. The completed assessment suggested that, given the child's resourcefulness and age, accommodation provided by the homeless persons unit, with referrals to other support agencies, would be sufficient for his needs. The solicitors argued that the child should in fact be accommodated pursuant to s 20(1)(c), thereby becoming entitled to the wider range of services available to a 'looked after child' and eventually qualifying as a 'former relevant child'. The authority responded that the child did not need accommodation under s 20, but only 'help with accommodation' under s 17. Under s 17 every local authority was under a duty to safeguard and promote the welfare of children in need within their area by providing a range of services, which could include accommodation. Section 20 required every local authority to provide accommodation for any child in need within their area who appeared to them to require accommodation in three specified circumstances, including, under s 20(1)(c), as a result of 'the person who has been caring for him being prevented (whether or not permanently, and for whatever reason), from providing him with suitable accommodation or care.' The Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051) expressly included children aged 16 and 17 in the list of those with priority need under the housing legislation, but expressly excluded children to whom a duty was owed under s 20, and 'relevant' children, previously looked after by a local authority. Local Authority Circular (2003) 13 stated that, although the power to provide accommodation under s 17 would almost always concern children needing to be accommodated with their families, there might be cases in which a lone child who needed help with accommodation but did not need to be looked after, might appropriately be assisted under s 17. The judge refused permission for judicial review. The Court of Appeal dismissed the child's application for judicial review by a majority, holding that the distinction in the Circular between a child who required help with his accommodation under Children Act 1989, s 17, rather than requiring accommodation under s 20, was lawful, even though not expressly drawn in the Act. The fact that s 17(6) empowered a local authority to provide accommodation as part of its general duty to safeguard and promote the welfare of children within their area presupposed that not every child, or even every child in need who satisfied the three criteria in s 20(1), must require accommodation under s 20, although it was not perhaps clear enough from the Circular that a decision that a child required 'help with accommodation' as opposed to the actual provision of accommodation under s 20, should not be driven by the consideration that expensive consequences would result from any decision to accommodate him under s 20. The local authority had been entitled in this case to decide that, even though the child was unable to live with the mother and had no other home, as a resourceful teenager capable of sourcing accommodation provided that he was given assistance to do so, he needed only'help with accommodation'. There was no evidence that the local authority had been side-stepping its s 20 obligations.
The House of Lords allowed the child's appeal. The key question was what the criteria in Children Act 1989, s 20(1), meant, and how, if at all, the application of the criteria was affected by the other duties of children's authorities, in particular under s 17 of the 1989 Act. The Lords cited, with approval Ward LJ's checklist of the judgments required in respect of s 20(1), as set out in R (A) v Croydon London Borough Council  EWCA Civ 1445. If, as in this case, a child met those criteria, the child was entitled to support under s 20; once every item on the list had been assessed in the child's favour, the duty had arisen, and the authority were not entitled to 'side-step' that duty by giving the accommodation a different label. If and insofar as the Circular suggested that even though the s 20(1) criteria were met, the authority had a choice between s 17 and s 20 based upon whether the child needed to be looked after, the Circular was incorrect. The 2002 Order assumed that some homeless 16 and 17 year olds would not be owed a duty under s 20 of the 1989 Act, for example a 16 or 17 year old who had been living independently for some time, with a job and without anyone caring for him, who lost his job, or a 16 or 17 year old who did not want to be accommodated under s 20. However, that did not mean that there were children who were not owed a duty under s 20 because they were or might be owed a duty under Housing Act 1996. The 2002 Order took out of priority need those children who required accommodation under s 20(1); such children could not in the same breath be put back into priority need by adjudging that they did not need accommodation at all, when plainly they did. Authorities should be slow to conclude that a child was no longer 'in need' because he did not need the sort of help with moving into independent living that children normally expect from their families, or because that help could be provided in other ways. Section 27 of the 1989 Act empowered a children's authority to ask other authorities, including any local housing authority, for 'help in the exercise of any of their functions' under Part III; the requested authority must provide that help if that was compatible with their own statutory or other duties and did not unduly prejudice the discharge of any of their own functions. A local children's authority could not use s 27 to avoid their responsibilities by 'passing the buck' to another authority; but could ask another authority to use its powers to help them discharge theirs, for example a children's authority could ask a housing authority to make a certain amount of suitable accommodation available for them to use in discharging their responsibility to accommodate children under section 20.