Local authorities caught between two Acts

Local authorities potentially owe duties to homeless 16- and 17-year-olds under Part VII of the Housing Act 1996 (HA 1996) and under Part III of the Children Act 1989 (CA 1989). In R(M) v Hammersmith and Fulham London Borough Council [2008]1 WLR 535; [2008] UKHL 14, the House of Lords gave important guidance about the respective responsibilities of local authority children's and housing services towards homeless 16- and 17-year-olds.

The facts of the case were as follows. M was evicted by her mother when she was 17. Their relationship had deteriorated and her mother was no longer prepared to accommodate M as a result of her behaviour. She presented herself at the local authority's housing offices and was provided with temporary accommodation under s 188 of the HA 1996 as the local housing authority had reason to believe that M might be homeless and might be in priority need.

M was subsequently evicted from this accommodation as a result of her behaviour and was later sentenced to a four-month detention and training order.

If M had been 'looked after' by the local authority within the meaning of s 22 of CA 1989 for a period of 13 weeks she would have been entitled to a range of services under the 'leaving care' provisions after the age of 18 as a 'former relevant child'. Such services include the appointment of a personal adviser, the regular review of a pathway plan, assistance with accommodation and other assistance to the extent that her welfare required it. That support would continue until she reached the age of 21, or in certain circumstances, 24.

In order to be a 'looked after' child, a child needs to have been (a) in the care of the local authority; or (b) provided with accommodation in the exercise of social services functions, that is under s 20 of the CA 1989 (accommodation provided under s 17 CA 1989 not counting for these purposes).

In judicial review proceedings, M claimed that she had been a 'looked after' child for the purposes of s 22(1) of the CA 1989, thereby entitling her to the leaving care services as a 'former relevant child'. However, M had in fact been provided with accommodation by the housing department under the homelessness provisions of Part VII of the HA 1996. M argued that she should have been identified as a child in need under s 17 CA 1989 and that she should have been provided with accommodation under s 20 CA 1989. She argued that it was unlawful for the authority to have provided her with accommodation under Part VII HA 1996 (as she could not have been in priority need if she had been owed a duty under s 20 of CA 1989) so she should be treated as having been accommodated under s 20 CA 1989.

The House of Lords decision

The House of Lords dismissed M's appeal. First, the House of Lords found that it was lawful for the local housing authority to provide interim accommodation to M under s 188 HA 1996 as the authority 'had reason to believe that an applicant may be homeless, eligible for assistance and have a priority need'. The threshold at that interim, s 188 stage, is designedly low. Furthermore not all 16- and 17-year-olds are entitled to accommodation under s 20 of the CA 1989; some may not qualify and so are not excluded from the category of persons in priority need under the HA 1996.

Consequently, the House of Lords stated that once it appears to a local housing authority that a 16- or 17-year-old may be homeless, that authority should provide interim accommodation under s 188 HA 1996 pending clarification of whether the local social services authority owe a duty to provide her with accommodation under s 20 CA 1989. The housing authority should therefore provide the accommodation under s 188 immediately, and then make further inquiries with the social services authorities (whether with the county council in non-unitary authorities or with social services department in unitary authorities).

Secondly, while recognising that the housing department should have referred M's case to the children's services department (and that there was little doubt that the children's services department should have accepted responsibility for her) the House of Lords concluded that M had never been a 'looked after' child as she had not been accommodated in the exercise of the local authority's social services functions.

It was not possible to hold that the actions of a local housing authority be categorised according to what the social services authority should have done had the case been drawn to their attention at the time '“ that is one could not treat the local housing authority as if it had been acting under the CA 1989 when it was in fact providing accommodation under s 188 of the HA 1996. Therefore, M never became a child who was 'looked after' by the local authority under CA 1989 and was not a 'former relevant child' qualifying for leaving care services.

The House of Lords also gave important guidance on the interpretation of s 20 CA 1989 itself. First, Baroness Hale favoured a broad approach to the interpretation of when a parent is 'prevented' from providing suitable accommodation or care under s 20(1)(c) such as that adopted in R(L) v Nottinghamshire County Council [2007] EWHC 2364 (Admin) and R(S) v Sutton London Borough Council [2007] EWHC 1196 (Admin). In these cases, the courts held that 'prevention' involves an objective test and is not satisfied if the facts are only that the child does not want to live with someone willing to provide suitable accommodation. But circumstances may arise where people are so incompatible they simply cannot live together. In M itself, Baroness Hale considered that while M's mother may not have been prevented from providing her daughter with any accommodation or care, she was prevented from providing her with 'suitable' accommodation or care.

Secondly, Baroness Hale considered that more weight should be given to a child's wishes under s 20(6) of CA 1989. She considered that there might well be cases in which there is a choice between s 17 and s 20 CA 1989, where the wishes of an older child who is fully informed of the consequences of the choices before her, might determine the matter. She thought it 'most unlikely' that s 20 CA 1989 was intended to operate compulsorily against a child who is competent to decide for herself.

Implications for local authorities

In many instances, it seems, 16- and 17-year-olds are treated by local authorities as being in priority need under HA 1996 and are ultimately accommodated under the HA 1996 and not the CA 1989 This practice will now need to change in light of the House of Lords decision. The likelihood is that, in many instances, 16- and 17-year-olds will need to be provided with accommodation under the CA 1989. That, in turn, means that many more such 16- and 17-year-olds are likely to qualify for other services under the CA 1989 and, significantly, are likely to become 'looked after' children who qualify for services even after the age of 18 under the leaving care provisions of the CA 1989.

However, the judgment provides some assistance for local authorities. It recognises that not all homeless 16- and 17-year-olds will be accommodated under CA 1989. This must be right, for were it otherwise, legislation providing that 16- and 17-year-olds are in priority need for the purposes of Part VII of the HA 1996 would be otiose. The House of Lords also recognised that once it appears to a local housing authority that a 16- or 17-year-old may be homeless, the housing authority should accommodate the child under s 188 H A 1996 pending clarification of whether the local social services authority owes a duty to provide accommodation under s 20 CA 1989. Therefore, unless there is some obvious reason for assuming that a duty was owed to a 16- or 17-year-old under the CA 1989 (e.g. the child has been in care or otherwise looked after by the local authority in the past), the local housing authority will not be acting unlawfully by providing temporary accommodation under s 188 HA 1996.

However, a housing authority cannot be satisfied that a 16- or 17-year-old is in priority need for the purposes of their longer term obligations under Part VII HA 1996 unless it has at least considered whether the child is owed a duty under s 20 of the CA 1989. The House of Lords endorsed the statutory guidance emphasising the need for joint protocols and joint assessments in determining the needs of homeless 16- or 17-year-olds. This will of necessity require greater involvement from social services authorities. Social workers will need to become involved to determine which 16- and 17-years-olds do, and which do not, meet the criteria in CA 1989 before a final decision can be taken on priority need under Part VII HA 1996. If the criteria in s 20 CA 1989 are met, children's services rather than housing must take the long-term responsibility for the child and will have a duty to provide accommodation. It is only if the social services authority concludes that the 16- or 17-year-old is not a 'relevant child' under s 23A CA 1989 or is not owed a duty under s 20 CA 1989 that the child is in priority need for the purposes of HA 1996.