M, R (on the application of) v London Borough of Hammersmith & Fulham

This application for judicial review raises a short but important point on the inter-relationship between the provisions of Part III of the Children Act 1989 (CA 1989), headed “Local Authority Support for Children and Families”, and the homelessness provisions of Part VII of the Housing Act 1996 (HA 1996), in particular sections 188 and 189, headed “Interim duty to accommodate”. It arises from a challenge made by M, a young woman born on 25 February 1988, and thus now 18, to a decision by the Hammersmith & Fulham London Borough Council (the council) in April 2005, when she was 17, to provide her with temporary accommodation under HA 1996 and the Homelessness (Priority Need for Accommodation) (England) Regulations 2002 (the 2002 Regulations).

M’s case is that the council; (1) should have identified her as a child in need under section 17(1) and (10) in Part III of CA 1989; and (2) should have provided her with accommodation under CA 1989 section 20. She submits that the council’s action in providing her with temporary accommodation under HA 1996 was unlawful, and that as a consequence she has been deprived of the services which would have been available to her at the age of 18, had the provisions of the Children (Leaving Care) (England) Regulations 2001 (the “Leaving Care Regulations”) been applied to her, and had she, in particular, been treated as “a former relevant child” pursuant to CA 1989, section 23C.

M accordingly asserts that she was unlawfully mis-categorised by the council. She seeks a declaration that she is a “former relevant child” under CA 1989 and the Leaving Care Regulations, and thus entitled to the services which flow from that status. Her claim is resisted by the council.

M’s application for permission to apply for judicial review against the council was refused by Newman J on 7 March 2006. He also refused permission to appeal. Permission to apply for judicial review was, however, given on the papers by Neuberger LJ on 26 April 2006 and the application was retained in this court. We accordingly heard it on 16 June 2006, and at the conclusion of the argument, we reserved judgment.

The judge made an order that M should not be identified. We agreed that this order should be continued, and I will, therefore, describe her as M throughout this judgment.

Although the point is a short one, its isolation requires a detailed recital of the facts of the case, and the identification of the relevant statutory material.

The Applicant is, plainly, a troubled young woman, who had a very unsettled childhood. Until 2.00pm on the day of the hearing before us, there was no statement from her. Over the short adjournment on that day, a statement from her was produced, to which objection was taken on behalf of the council. In the event, as what follows makes clear, we do not need to rule on the admissibility of the statement which M sought to put in on 16 June 1006.

The facts emerge from a statement filed in the proceedings by M’s mother in May 2006, and from the evidence produced by the council, most of which is not in issue. M is the youngest of 5 children. Her mother’s statement paints a bleak picture of M’s early life, although at no point does M appear to have been in the care of the council: indeed M’s mother says in terms that she asked for help from the council’s children’s services, but received none. According to her mother’s statement, she, M and M’s siblings were placed in temporary accommodation for eight years, and at times were homeless.

At the age of 15, M was excluded from school for a year, but did not return to school after the period of exclusion expired. From an attachment to a pre-sentence report produced by the council’s Youth Offending Team, it appears that on 18 September 2004, when she was 16, she committed offences of robbery and threats to kill, and on 17 January 2005, shortly before her seventeenth birthday, she committed a further offence of robbery.

In early April 2005, when she was 17, the relationship between M and her mother broke down, and M was asked to leave home. In her statement, M’s mother explains that she has an inoperable life threatening tumour, and that in early April 2005, M’s behaviour deteriorated to such an extent that her mother was unable to control her. That statement is consistent with the record of M’s offending set out in paragraph 9 of this judgment.

According to her mother’s statement, M presented at the Social Services Department of the council, but was referred by Social Services to its Housing Department. What is documented, however, and what plainly happened is that on 6 April 2005, M attended the council’s Housing Department stating that she was homeless, and was provided by the council with bed and breakfast accommodation under HA 1996, sections 188 and 189. This was done by means of a letter written by an officer in the temporary accommodation section of what is described as the council’s “Housing Options and Assessment Section”.

The letter appears as an exhibit to a statement dated 2 March 2006 by Zahra Beg, a Housing Officer employed by the council. Attached to the letter in our bundle is a document headed “licence agreement for the provision of temporary accommodation for homeless families” which, on its face confers “rights of occupation of the accommodation provided by the council” (the Dani Hotel in Shepherds Bush) “as temporary accommodation within the meaning of Part VII of HA 1996 (Homelessness)”. The document makes clear that it is neither creating a tenancy nor providing a right of exclusive occupation of any particular accommodation. The document lays down a number of conditions of occupation, and is signed by both M and the temporary accommodation officer.

In her statement, Ms Beg, who managed the office which dealt with M’s housing applications, says that, in all, M approached the office on three occasions, claiming each time that she had no accommodation and asking to make an application for housing on the basis that she was homeless. Ms Beg states that from her “initial facts and situation” it appeared that M might have a prima facie case of homelessness for housing given her age and circumstances, with the consequence that on each occasion the council agreed to place her in temporary accommodation whilst her application for housing was being assessed. Ms Beg adds that “a final decision would be made in due course”.

As is apparent from paragraph 11 above, the first approach which M made to the council’s Housing Department was on 6 April 2005. However, on the council’s case as initially advanced, M did not remain in the Dani Hotel for very long. What is said to have happened emerges clearly from a letter written to M on 20 April 2005 by Terry Schiff, a homelessness officer employed by the council. This letter is important, and I propose to cite it in full: -

“Dear Ms (M)

HOUSING ACT 1996 – PART VII – HOMELESSNESS

SECTION 184 – NOTIFICATON OF DECISION

I am writing in connection with your application for special help with your housing.

Because you have not responded to our previous correspondence and have not made any contact with the council in connection with your application, the council assumes that you no longer wish to pursue your application.

Lara Casher has contacted you on 7^th and 11^th April at the Dani Hotel and left messages for you to contact her.

Lara Casher sent you a letter arranging an appointment for your to attend mediation on 15^th April at 2.00pm.

You failed to respond to any to these requests.

I left a further message for you at the Dani Hotel on 18^th April insisting that you contact Lara Casher by midday on 19^th April.

You did not.

Therefore, the council does not owe you any further housing duty, and as of today’s date your application is cancelled. Your temporary accommodation will be cancelled on Monday 25^th April at 9.00am.

You have the right to request a review of this decision. If you wish to do so, you should confirm this request in writing to the Customer Services and Information Team in the Housing Needs Unit within 21 days from receipt of this letter. Failure to do so within the next 21 days will mean that no review will be allowed.”

(Lara Casher’s precise status within the council’s structure is not clear from the papers).

There was, however, contact between M and the council after 20 April 2005, because, although Terry Schiff’s letter cancelled M’s accommodation with effect from 25 April, it is apparent that, on that day, Bruce Mackay of the Temporary Accommodation Section of the council’s Housing Department wrote to M, confirming the booking of the hotel from 6 April 2006, and advising her that she was responsible for the payment of the weekly charges for the hotel of £224.20.

In the manuscript statement which she sought to put in on 16 June 2006, M explains this apparent contradiction by saying that she was informed by the Hotel on 25 April that the council had cancelled her licence. M says she saw Linda Casher (whom she describes as a “mediation worker”) the same day and explained that she had not received the letters and messages identified in Terry Schiff’s letter. M says that Linda Casher contacted M’s mother, who confirmed that M could not return home. M says that she was then told she could return to her room at the Dani Hotel, and duly signed the licence agreement referred to in paragraph 12 above.

On 13 May 2005, M committed an offence of witness intimidation, in relation to which she appeared before the West London Youth Court in October. On 19 May 2005, she received a 9 month referral order from the same court relating to the offence of robbery committed on 17 January 2005.

The council’s case in argument before us was that in May 2005, the Appellant was evicted from the Dani Hotel, although Mr. Lewis, on its behalf, acknowledged that the precise date did not emerge from the evidence. M, however, denied that this was the case, and asserted in her manuscript statement that she remained at the Dani Hotel until about September, when she says she received a letter from the council advising her that she had been offered a place at a hostel in the borough known as the Co-op Hostel.

M’s case, accordingly, was that she was continuously placed in accommodation by the council from 25 April 2005, until October 2005. These dates are important, because in order to qualify for assistance under the Leaving Care Regulations, M would have to demonstrate that she was accommodated by the council under CA 1989, section 20 for a minimum period of 13 weeks. I set out the relevant provision in paragraph 44 below. For present purposes, I simply record the issue as it was presented to us. M asserted through counsel that she had the letter referred to in paragraph 18 at home, and we gave her until close of business on 21 June to produce it.

What in fact happened was that, following the conclusion of the oral argument, the Housing Department of the council has re-checked its records, and it is now accepted that temporary accommodation under HA 1996 was provided to M by the council as follows: -

I therefore proceed on this basis. It has to be noted, however, that items (1) and (2) in paragraph 20 above are in conflict with the statement made by M’s mother in May 2006. According to the latter, M was evicted from the Dani Hotel in May 2005 because she would not engage in mediation. Her mother says that after her placement at the Dani Hotel ended in May, M “stayed at friends and was all over the place” until September 2005 when she was found accommodation by the council at the Co-op Hostel, from which she was removed in October. For a time after that, her mother says, M lived with her sister.

From the documents produced by the council, it appears that on 5 October 2005, Mr. Mackay wrote to M informing her that the council had discharged its duty to provide her with temporary accommodation as she had been evicted from premises identified as “Co-op homes” for what is described as her “persistent breach” of her licence agreement, details of which are set out in the letter. One of the breaches alleged was a consistent failure to attend sessions with her allocated Support Worker, which was said to be a condition of the licence. Due to what was described in the letter as her “persistent breaches of the rules in temporary accommodation”, the council stated that no further accommodation would be provided for M under HA, section 188. Her housing application had, not, however, been closed, but M would need to inform her case officer (identified as Gladys Gitonga) if she wished to continue with it. M was told to seek independent advice if she was not certain about the contents of the letter, and advised of her right to appeal against the decision.

On 19 October 2005, M appeared before the West London Youth Court to answer the charges of robbery and witness intimidation. On 20 October 2005, Mrs Grace Wesley, an applications officer in the council’s Housing Department, wrote to M advising her that her application for special housing assistance had been closed, and that the council accepted no further housing duty towards her household. The letter continued: -

“This is because you have breached the rules of the temporary accommodation provided for you by the council. You consistently failed to attend sessions with your allocated Support Worker, a condition of your licence. Your support worker alleged that you were verbally abusive to her which is unaccepted (sic). You allowed overnight guest to stay, something which is strictly forbidden in the terms of your licence agreement. Although you received numerous warnings about your conduct, you failed to modify your behaviour. I have had no contact with you in relation to your housing application, and your whereabouts are now unknown.

The council therefore assumes that you have made your own arrangements and accepts no further duty to arrange permanent housing or further temporary accommodation for your household. …..

M was, once again, advised of her right to request a review of the decision.

On 23 November 2005, M was sentenced at the West London Youth Court to a 12 months supervision order with an intensive supervision and surveillance programme (ISSP). On 7 December 2005, M appeared in court to answer a breach of the ISSP, and on the same day was booked by the council’s Housing Options and Assessment section into another hotel in Shepherd’s Bush (the St George’s Hotel) on the same terms as in April.

On 21 December 2005, M was brought back before the youth court which adjourned for the question of her accommodation to be resolved. On the following day, however, M’s licence to occupy the room in the St. George’s Hotel was cancelled by the council, following a warning on 18 December that her conduct was not acceptable. Particulars are contained in a letter dated 22 December 2005 from the council’s Assistant Manager, Thomas Rodgers, which I need not repeat. M was requested to leave her room by 3.00pm the same day.

On 11 January 2006, M was sentenced to a period of 4 months custody in a Young Offenders Institution. She turned 18 on 25 February 2006, whilst still in custody. She was released from custody on 10 March 2006, and on the same day was placed by the council in another hostel. She has, according to the chronology provided by her counsel, Mr. Ian Wise, had at least two moves since. She is also currently pregnant, with her baby due to be born, we were told by counsel, in the autumn of 2006.

Through the good offices of the Howard League for Penal Reform, M sought permission to apply for judicial review and interim relief on 28 February 2006. By that date, she had, of course, turned 18 but was still in custody. On the same day, Ouseley J directed the oral hearing on notice which took place before Newman J on 7 March 2006.

The relevant substantive relief sought by M in her judicial review claim form was a declaration that she was a “former relevant child” as defined by section 23C of CA 1989. Mr. Wise, on M’s behalf, accepted in argument before us that in order to succeed in that claim, he had to demonstrate that the council’s decision on 6 April 2005 to treat M as being in priority need under HA 1996 was unlawful. The council, he submitted, should not have treated M as unintentionally homeless and in priority need under HA 1996, Part VII: they should have treated her as a child in need under CA 1989 and accommodated her as such under CA 1989, section 20. By failing to do so, Mr. Wise submitted, the council acted unlawfully.

The claim form seeks other relief, such as interim measures (which are now irrelevant) and a declaration that the council’s failure to work with M whilst she was in custody and to assess her needs in advance of her release was contrary to the Youth Justice Board’s National Standards and unlawful under ECHR article 8. In a helpful “speaking note” which Mr Wise produced for the hearing before us, he did not appear to abandon his argument under this head, but acknowledged that, given the enduring dispute as to whether M was in fact a “looked after” child within CA 1989, Part III and thus entitled to the benefit of the Leaving Care Regulations, the National Standards issues had “fallen away”. I agree, and accordingly say no more about it.

I start with sections 188 and 189, which are headed Interim duty to accommodate. Section 188 is headed: Interim duty to accommodate in case of apparent priority need. The relevant sub-sections read:

(1)

If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part …….

(3)

The duty ceases when the authority’s decision is notified to the applicant, even if the applicant requests a review of the decision

HA 1996, section 189, is headed Priority need for accommodation. The relevant sub-sections read: -

(1)

The following have a priority need for accommodation……

(d)

a person who is homeless or threatened with homelessness as a result of an emergency, such as flood, fire or other disaster.

(2)

The Secretary of State may by order –

(a)

specify further descriptions of persons as having a priority need for accommodation, and

(b)

amend or repeal any part of subsection (1).

The 2002 Regulations, made by the Secretary of State pursuant to the powers granted by section 189(2) of HA 1996, came into force on 31 July 2002. By paragraph 1(3), they give the term "looked after, accommodated or fostered" the same meaning as it has in section 24(2) of the Children Act 1989. For current purposes, the only relevant description which is said to fit M is that contained in CA 1989, section 24(3)(b) the terms of which I set out below.

Under the heading Priority need for accommodation, paragraph 2 of the 2002 Regulations identifies children aged 16 or 17 who have a priority need for accommodation for the purposes of part 7 of HA 1996. Regulation 3 reads: -

“Children aged 16 or 17

3.(1) A person (other than a person to whom paragraph (2) below applies) aged sixteen or seventeen who is not a relevant child for the purposes of section 23A of the Children Act 1989.

(2)

This paragraph applies to a person to whom a local authorityowe a duty to provide accommodation under section 20 of that Act (provision of accommodation for children in need).”

It is thus apparent that a child who falls within paragraph 3(2) is excluded from the category of children who have a priority need for housing under Part VII of HA 1996. This provision is relied upon heavily by Mr. Wise.

CA 1989 section 17 imposes a general duty on the council for the provision of services for children in need, their families and others: -

(1)

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a)

to safeguard and promote the welfare of children within their area who are in need; and

(b)

so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children’s needs.

Children in Need are defined in section 17(10): -

(10)

For the purposes of this Part a child shall be taken to be in need if—

(a)

he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b)

his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c)

he is disabled,

and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

The general provisions for the accommodation of children in need are contained in CA 1989, section 20:

(1)

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)

there being no person who has parental responsibility for him;

(b)

his being lost or having been abandoned; or

(c)

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.

……..

(3)

Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation

(4)

A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.

(5)

A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

(6)

Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—

(a)

ascertain the child’s wishes [and feelings] regarding the provision of accommodation; and

(b)

give due consideration (having regard to his age and understanding) to such wishes [and feelings] of the child as they have been able to ascertain…..

Section 22 imposes a general duty on the council in relation to children who are “looked after” by the council. Such children are defined as follows: -

(1)

In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—

(a)

in their care; or

(b)

provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970 (LASSA), apart from functions under sections 17, 23B and 24B.

CA 1989, section 22(2) defines “accommodation” as “ accommodation which is provided for a continuous period of more than 24 hours”, and sub-section (3) imposes a duty on a local authority looking after any child—

(a)

to safeguard and promote his welfare; and

(b)

to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.

CA 1989, sections 23A and 23B identify “relevant” children and the additional functions of the responsible authority in respect of them. To understand the relevance of these provisions to the instant case, it is necessary to cross-refer to CA 1989 paragraph 19B of Schedule 2. This provides: -

(1)

A local authority shall have the following additional functions in relation to an eligible child whom they are looking after.

(2)

In sub-paragraph (1) “eligible child” means …. a child who—

(a)

is aged sixteen or seventeen; and

(b)

has been looked after by a local authority for a prescribed period, or periods amounting in all to a prescribed period, which began after he reached a prescribed age and ended after he reached the age of sixteen.

CA 1989, Schedule 2 paragraph 19B then goes on to identify the services to be provided for “eligible” children. It is, of course, these services of which M claims to have been deprived. I do not need to identify them for the purposes of this judgment: it is sufficient, I think, to state that a local authority is charged with duties extending beyond an eligible child attaining the age of 16, including the duty to make an assessment of the child’s needs and to prepare a “pathway plan” for the child, which must in turn be kept under regular review. The council in the instant case does not dispute that an “eligible” child receives a range of services which are not available to a child who is not “eligible”.

Returning to CA 1989 section 23A, 23B and 23C, section 23B imposes additional functions on a local authority in relation to a “relevant” child, including the duty to appoint a personal adviser for the child. CA 1989, section 23C imposes continuing functions in respect of former relevant children. The term “relevant child” in CA 1989, section 23A(1) is defined in CA 1989, section 23A(2). It means a child who: -

“(a)

is not being looked after by any local authority;

(b)

was, before last ceasing to be looked after, an eligible child for the purposes of paragraph 19B of Schedule 2; and

(c)

is aged sixteen or seventeen.”

The local authority’s continuing functions in respect of “former relevant children” are contained in CA 1989, section 23C, which applies to: -

“(a)

a person who has been a relevant child for the purposes of section 23A (and would be one if he were under eighteen), and in relation to whom they were the last responsible authority; and

(b)

a person who was being looked after by them when he attained the age of eighteen, and immediately before ceasing to be looked after was an eligible child ……”

Finally, the Leaving Care Regulations state in Regulation 3(1) that for the purposes of CA 1989, Schedule 2 paragraph 19B(2)(b) (set out at paragraph 40 above), the “prescribed period” is 13 weeks and the “prescribed age” is 14. In other words, for M to qualify as an “eligible” child for the services identified in CA 1989, Schedule 2, M would have to show that she was 17 (which she was) and that she had been accommodated by the council for a period of 13 weeks under a relevant social services function of the council.

For M, Mr. Wise accepted, and in my judgment had no alternative but to accept, that M had never been provided by the council with accommodation in the exercise of any functions of CA 1989 which were “social services functions” within the meaning of LASSA (see CA 1989, section 22(1)(b) set out at paragraph 38 above). The evidence is overwhelming that she was dealt with by the council exclusively under HA 1996.

In my judgment, three critical conclusions flow from this analysis. Firstly, if the council acted lawfully in dealing with M under HA 1996 and not CA 1989, she never was a child who was “looked after” by the council within CA 1989, section 22(1). Secondly, and by parity of reasoning, M was never at any point either an “eligible” child within CA 1989, Schedule 2 paragraph 19B(2) or a “relevant” child within CA 1989, section 23A(2). Thirdly, if it was lawful for the council to address M’s accommodation under HA 1996, the council has a complete and simple answer to the application for judicial review, which must fail.

Mr. Wise argues, however, that M was plainly and obviously a child in need, and should have been recognised by the council as such when she applied to it for assistance on 6 April 2005. Moreover, he submits that Regulation 3 of the 2002 Regulations specifically excluded M as a person in priority need, and however she was categorized by the council, she was, as a matter of law, accommodated under CA 1989. She was, accordingly, both an “eligible” and a “relevant child” to whom the provisions of the Leaving Care Regulations applied, and the council had unlawfully deprived her of the benefits which flow from that status.

As I indicated at the outset of this judgment, the point is a short one, and despite Mr. Wise’s sustained and vigorous attempt to persuade me to the contrary, I am satisfied that M’s application for permission to apply for judicial review was correctly refused by the judge, and fails, both in law and on the facts.

In argument, Mr. Wise accepted, as once again I think he had no alternative but to accept, that not every 17 year old who presents to a local authority homeless was, automatically, a child in need within CA 1989, section 17(10). The question, accordingly, which is a mixed matter of law and fact, is whether or not M was a “child in need” when she presented to the council’s Housing Department on 6 April 2005, and whether or not the council was obliged as a matter of law to treat her as such. On the available material, I have reached the clear conclusion that, on 6 April 2005, the council was entitled, as a matter of law, to deal with M under HA 1996, and was not required either to treat her as a “child in need” under CA 1989, section 17 or to accommodate her under CA 1989, section 20.

Furthermore, in my judgment, there is nothing in the evidence presented by M which would have required the council, on the facts of this case and as a matter of law, to designate her as a child in need at any point between 6 April 2005 and her 18^th birthday on 25 February 2006, or which rendered it unlawful for the council to continue to deal with her under the provisions of HA 1996.

Under HA 1996 s 188, the council, as local housing authority, had a duty to arrange accommodation for M if it had reason to believe that she might be homeless, eligible for assistance and in priority need, pending a decision as to what, if any, longer-term duty was owed to her under HA 1996, section 193. The duty under section 189 must, self-evidently, be performed at once, and when it had been performed the council would then embark on enquiries to see what M’s circumstances were, so that it could decide whether it was under the longer-term section 193 duty to house M. This duty applies where the housing authority “are satisfied” as opposed to having “reason to believe” that an applicant is, rather than may be, unintentionally, “homeless, eligible for assistance and in priority need”.

The council plainly had reason to believe that M might be homeless on 6 April 2005, and, on the evidence, no question arose as to her not being eligible for assistance. The question, accordingly, is whether, as a matter of law, the council was entitled to have reason to believe that she might be in “priority need” within HA 1996, section 188(1).

M is not within the original categories of priority need under section 189, but, as set out in paragraph 31 above, these have been extended under the 2002 Regulations. On 6 April 2005, in my judgment, M, on the evidence, plainly could properly have appeared to the council to be someone who might fall within Regulation 3(1) of those Regulations. M was not, in my view, a “relevant child” within CA 1989, section 23A(2)(b). The matter can be tested in a simple way. Had the Housing Officer asked her, for example: “Have you ever been in care, or looked after by the council?” the truthful answer would have been “no”. It follows, in my judgment, that on 6 April 2005, M fulfilled the criteria laid down in HA 1996, section 188, and it was, accordingly lawful for the council to have reason to believe that she was a person in priority need.

In my judgment, this conclusion is not only correct from a purely legal perspective, but it also accords with reality and good sense. Faced with a person in M’s position, the council, as stated in paragraph 51 above, had to act at once. Mr. Lewis, for the council, made the point that, particularly in areas where a local authority’s housing functions were separate from its social services functions (functions which might indeed be operated by a different authority) it would be absurd if a housing department had to turn away a homeless 17 year old who had never been in care or “looked after” by a local authority on the ground that social services owed her a duty to accommodate her under CA 1989, section 20 as a “child in need”, and because, for that reason, she did not qualify as being in priority need for housing under HA 1996, section 188. Yet that, he argued, would be the logical consequence of Mr. Wise’s submission.

It is, I think of considerable importance that HA 1996, section 188(1) only requires the council to have “reason to believe” that the terms of the sub-section are met. It is, accordingly, dealing with “apparent” priority need, and is entitled to act accordingly. Before the fuller duty under section 193 applies, there is plainly a duty to investigate.

I therefore do not think that it was incumbent on the housing officer dealing with M on 6 April 2005 to assume (for it would have been an assumption) that M was a “child in need” under CA 1989, section 17. Under which sub-section of section 17(10) was she to be so categorised? She was plainly not disabled (CA 1989 section 17(10)(c)), and there is nothing in the evidence to suggest that she presented as unwell, either physically or mentally. Her complaint – confirmed on 25 April 2005 by her mother – was that she was homeless.

In my judgment, the lack of reality in Mr. Wise’s submission was reinforced by the Local Authority Circular which he produced, dated 2 June 2003, emanating from the Department of Health and entitled Guidance on Accommodating Children in Need and Their Families (LAC (2003) 13). This makes it clear that the designation of a child as being “in need” under CA 1989, section 17 and whether or not accommodation should be provided for the child under CA 1989 section 20 is not a snap decision to be taken on the spot by a Housing Officer faced with a homeless 17 year old. The relevant paragraph of the Guidance reads: -

“Before deciding which section of the Children Act 1989 provides the appropriate legal basis for provision of help or support to a child in need, a local authority should undertake an assessment in accordance with the statutory guidance set out in the Framework for the Assessment of Children in Need and their Families, published by the Government in April 2000. It should then use the findings of that assessment, which will include taking account of the wishes and feelings of the child (as required by section 20(6) of the Children Act), as the basis for any decision about whether he should be provided with accommodation under section 20 (and therefore become looked after) or whether other types of services provided under section 17 of the Act are better suited to his circumstances.”

The Framework for the Assessment of Children in Need and their Families (the Framework) referred to in that citation, was published by the Department of Health in April 2000. It is, as may be imagined, a substantial document, and lays down detailed procedures for the assessment of children in need and the provision of services for them, running to some 124 pages. Although I am in danger of straying outside the ambit of the issues raised on the facts of the instant case, I think it worthwhile reproducing from the Framework the section on Housing, which appears between paragraphs 5.69 and 5.72

“Housing

5.69

Housing Authority staff, through their day to day contact with members of the public, may become aware of concerns about the welfare of particular children and should refer to one of the statutory agencies as appropriate.

5.70

Equally, Housing Authorities may have important information about families which could be helpful to social services departments carrying out assessments under s17 or s47 of the Children Act 1989. In accordance with their duty to assist under s27 of the Children Act 1989, they should be prepared to share relevant information verbally or in writing, including attending child protection conferences when requested to do so.

5.71

The provision of appropriate housing can make an important contribution to meeting the health and developmental needs of children. Housing Authorities should be prepared to assist in the provision of accommodation, either directly, through their links with other housing providers or by the provision of advice.

5.72

Social services departments have a duty under section 20(3) of the Children Act 1989 to accommodate any child in need aged 16 and 17 whose welfare is likely to be seriously prejudiced without the provision of accommodation. At the same time, Housing Authorities are required under the Housing Act 1996 to secure accommodation for people who are homeless, eligible for assistance and in priority need. Homeless young people may frequently come to the notice of both housing and social services and will need to be assessed to establish whether they should be provided with accommodation. There is a danger that in these circumstances young people may be passed from one agency to another and it is important therefore that joint protocols are agreed between housing and social services in the matter of how and by whom they are to be assessed.

It is already quite clear that the council’s housing officer dealing with M was under a statutory duty to investigate M’s circumstances in order to ascertain whether or not the council had the longer-term duty to house M which I have identified in paragraph 51 above. It also seems clear from the Framework that, as a matter of good practice, if the housing officer, in the course of what I will call the HA 1996, section 193 investigation, had identified factors in M’s situation which made her a candidate for designation as a child in need, it was the responsibility of that housing officer to refer M to the Social Services department of the council, or to alert Social Services to M’s situation.

However, M’s case was not argued on the basis (1) that the council was in breach of a duty on the part of the Housing Department to refer M to the Social Services Department of the Council; nor (2) was the application for judicial review addressed to the council’s Social Services Department on the basis that it had failed to assess M as a potential child in need. In my judgment, Mr. Wise was right not so to argue the case, since the limit of the Housing Officer’s duty (assuming such a duty to exist) would have been to refer M to Social Services. Whether Social Services, on a full assessment, would have come to the conclusion that M was a child in need under CA 1989 section 17, who fell to be accommodated under CA 1989, section 20 must be a matter of speculation.

As to the duty owed by the Social Services Department of the council to M, there is no evidence that Social Services failed to assess M when it should have done; nor, as stated in the preceding paragraph, is there any evidence that, had it done so, the result would necessarily have been a decision that M fell within CA 1989 section 17.

Furthermore, a duty to refer to Social Services is quite separate from, and in my judgment does not affect, the council’s argument that it was lawful for the housing officer to deal with the question of M’s homelessness under HA 1996, section 188, and that the officer was not required to assess M on the spot as a child in need.

In any event, and assuming the duty to refer to Social Services to exist, M’s case, in my judgment, breaks down on the facts. Speaking for myself, I fully accept that – as the Framework illustrates - an investigation into a 17 year old’s circumstances may well demonstrate that, although the initial application related to the immediate problem of homelessness, the child in question has other difficulties which may render her child in need under CA 1989 section 17(10).

In the instant case, however, the Council’s initial attempt to investigate M’s circumstances was frustrated for the reasons set out in Terry Schiff’s letter of 20 April 2005, which I have set out in paragraph 14 of this judgment. The evidence is, throughout, that M applied to the council as homeless under HA 1996, Part VII, and that the council’s initial investigation was, quite lawfully, to ascertain whether or not a HA 1996 section 193 duty arose. If it was lawful for the council to treat her under HA 1996, Part VII on 6 April 2005, I find nothing in the evidence to suggest that the position was any different thereafter. M’s failure to co-operate with the investigation continued. Indeed the evidence from Mr. Mackay’s letter of 5 October 2005 is that, quite apart from her behaviour in the Co-op Hostel, M was not cooperating with her allocated support worker.

Mr. Wise also referred us to Chapter 8 of the Homelessness Code of Guidance for Local Authorities (the Homelessness Code) published by the Office of the Deputy Prime Minister and the Department of Health in July 2002, paragraph 8.37 of which reads: -

“Responsibility for providing suitable accommodation for a relevant child (emphasis in the original) or a child in need to whom a local authority owes a duty under section 20 of the Children Act 1989 rests with the social services authority. In all cases of uncertainty as to whether a 16 or a 17 year old applicant may be a relevant child or a child in need, the housing authority should contact the relevant social services authority. It is recommended that a framework for joint assessment of 16 and 17 year olds is established by housing and social services authorities to facilitate the seamless discharge of duties and appropriate services to this client group. ”

Speaking for myself, I do not think that the Homelessness Code advances M’s case. M was plainly not a “relevant child” on 6 April 2005, and I have already stated my reasons for taking the view that it was not incumbent on the housing officer to identify her as a “child in need”. In my judgment the Homelessness Code complements the Framework, but takes the matter no further. The Housing Authority’s assessment of M’s longer term housing needs were frustrated by her behaviour, and for the reasons I have already given, and, assuming that there was a duty on Housing to refer M to Social Services; (1) there is no evidence that council was in breach of that duty; alternatively (2), if it was, the outcome of any subsequent CA1989 Part III investigation by Social Services must, as I have already stated, be a matter of speculation.

In my judgment, therefore, Mr. Wise is simply unable to demonstrate that the council acted unlawfully in dealing with M on 6 April 2005 under HA 1996, section 189. It seems to me, moreover, that similar arguments apply to the further housing provided for M from April to September, and in December 2005.

Since M’s case fails in any event, this point is now both academic, and disappears from the case, given the council’s agreement – set out at paragraph 20 above, that she was, in effect, provided with temporary housing from 5 April 2005 to 5 September 2005, a period of four months. Accordingly, if M qualified in other respects as a child in need, she would fulfil the 13 week criterion contained in regulation 3 of the Leaving Care Regulations. For the reasons I have given, however, she does not so qualify. It is for these reasons that I stated in paragraph 7 of this judgment that it is unnecessary for us to rule on the admissibility of M’s statement.

Mr. Wise placed reliance on two paragraphs in the judgment of Sullivan J in this case, which concerned four adult claimants for judicial review who, as children, had arrived unaccompanied in the United Kingdom and claimed asylum. All four had received assistance from the local authority under CA 1989, Part III. However, on attaining their respective majorities, the local authority sought to argue that the Leaving Care Regulations did not apply to them, on the ground that they had not been accommodated under CA 1989, section 20 by the local authority after 20 November 2002, the date on which the Regulations came into force. The four adults successfully applied for judicial review. The judge rejected the local authority’s argument as “mere sophistry”. Mr. Wise relied, firstly, on paragraph 57 of Sullivan J’s judgment in the case, where he said:

“At the heart of the council’s case is its contention that these four claimants were not provided with accommodation under section 20 of the 1989 Act, they were merely provided with services under section 17 of the Act. Much of the debate between the parties has been somewhat legalistic in nature, focusing upon the precise terms of section 17 and 20. In my view, before trying to “pigeon hole” the assistance given by the defendant into any particular statutory formulation, it is important to see what the claimants needs actually were and what the defendant actually did to meet those needs.

And in paragraph 72, he added: -

In these circumstances, it does not do any violence to the statutory language, to the policy underlying Part III of the Act or to elementary common sense to say that the claimants were indeed “looked after” by the defendant.”

I do not think this case assists Mr. Wise. It is, with respect to him, on a completely different point. In the instant case, the question was whether or not it was lawful for the local authority to deal with M under the provisions of HA 1996. I have found that it was; that it was not the council’s duty to accommodate M under CA 1989, section 20; and that M, as a consequence, was never looked after or accommodated by the council under CA 1989. Comparing the different provisions of CA 1989 Part III on the one hand, and, on the other, comparing the duties owed under CA Part III and HA 1996 to ascertain which applied to M are, in my judgment, wholly different exercises.

Although this case, in my judgment, plainly fails on both the law and on the facts, the point it raises in relation to vulnerable children aged 16 and 17 is an important one, and in giving permission to apply for judicial review in this court, Neuberger LJ commented that, irrespective of the outcome, M’s arguments merited consideration in this court “for the purposes of authoritative guidance being given”. I therefore venture some further observations.

In my judgment, the outcome of the instant case should not be seen as, in any way, either limiting or relaxing the duties of local authorities both to investigate the circumstances of those under 18 who may be in need, and, where appropriate, to make provision under CA 1989 Part III for them. In particular, this judgment should not be read in any sense as relieving local authorities of their obligations under Part III of CA 1989 in general and, in particular, of their duty to identify and accommodate children in need under CA 1989, sections 17 and 20.

It is self-evident that most troubled 16 and 17 year old children will be unaware of the services available to assist them, and it is equally self-evident that the onus is not on children in need to identify and request the services they require.

Furthermore, any system can deal with the compliant. Young people in the position of M, who have had wretched childhoods, or who have been otherwise abused or neglected as children, and who have gone on to commit criminal offences, may well, like M, fail to co-operate with any investigation by the council into their circumstances. This fact does not, in my judgment, either of itself and as a matter of law, absolve local authorities of their duty both to investigate, and to put in place the services which children such as M require.

In this respect, I respectfully agree with an observation made by Munby J in R(J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin) [2005] 2 FLR 860. The case concerned a child of 17 who had been in the care of the local authority for some 4 years. The question for the judge was, accordingly, not whether or not the provisions of Part III of CA 1989 and the Leaving Care Regulations applied to the child: they self-evidently did. The question was the adequacy of the local authority’s assessments of the child and of its pathway plan.

At the conclusion of his judgment, under a heading The problem of the unco- operative child Munby J commented at paragraph 56 ([2005] 2 FLR 860 at 876): -

“The fact that a child is uncooperative and unwilling to engage, or even refuses to engage, is no reason for the local authority not to carry out its obligations under the Act and the Regulations. After all, a disturbed child's unwillingness to engage with those who are trying to help is often merely a part of the overall problems which justified the local authority's statutory intervention in the first place. The local authority must do its best.”

As I have already stated, Munby J was making these observations in a case where there was an established duty owed to the child under CA 1989 and the Leaving Care Regulations. On the facts of instant case, however, and despite Mr. Wise’s best efforts in the instant case to unearth it, there is no evidence that the council failed in its duty to M under CA 1989. That does not mean that she is not a needy young woman. What it does mean is that, on the facts, she is not entitled, as a matter of law, to take advantage of the services provided to a child under CA 1989 and the Leaving Care Regulations.

If a local authority fails inappropriately to identify a child in need within CA 1989, section 17(10), that failure is amenable to judicial review: - see, for example, Re T (Accommodation by Local Authority) [1995] 1 FLR 159; Re J (Specific Issue Order: Leave to Apply [1995] 1 FLR 66 and, generally, Rayden & Jackson on Divorce and Family Matters, 18^th edition, paragraph 50.13. Furthermore, as Mr. Lewis pointed out, M currently has a number of services available to her and, in due course, when her child is born, other services will become available.

In my judgment, M’s application for judicial review fails, and I would refuse it.

As Lord Justice Wall has described, the Appellant, M, is a young woman who needs all the support she can get to help her cope with her present position and the consequences of her difficult childhood. If she is entitled to the benefit of the obligations of the local authority under the Leaving Care Regulations, she will be better supported than otherwise. The Council is not willing to proceed on the basis that it owes her those obligations. I dare say that resource implications are involved, but the legal issues raised by the appeal are of wider concern and significance for the Council, and for all local housing authorities.

The result of the rather elaborate network of statutory provisions which Lord Justice Wall has set out is that the Leaving Care Regulations would apply to M if, before she became 18, she had been in care, or she had been provided with accommodation by the local authority in exercise of any of its social services functions (subject to certain exceptions) for at least 13 weeks, ending while she was 16 or 17. Emerging into adulthood from either of those situations, she is to be given the enhanced support provided for by the Leaving Care Regulations.

M was never in care. She was, however, provided with accommodation by the Council for more than 13 weeks while she was 17. The question on which this case turns, therefore, is whether, on the true legal analysis of the facts as regards that provision of accommodation, the Council provided it in the exercise of relevant social services functions.

It is plain that, consciously, the Council arranged for the accommodation to be provided under Part 7 of the Housing Act 1996, in pursuance of its interim duty to provide accommodation for someone who, it has reason to believe, may be homeless, eligible for assistance and in priority need, under section 188 of that Act. M’s application and appeal can only succeed, as it seems to me, if the Council’s housing department could not have taken the view, when she applied to it to be housed, that she was someone to whom it owed the duty under section 188, but must have come to the conclusion that she was someone to whom the Council’s social services department owed a duty to provide accommodation under section 20 of the Children Act 1989.

In the present case, as with any London borough and any metropolitan authority, the same council performs both housing and social services functions, though through different staff, under the control of different committees and with different budgets. In other areas, the housing authority would be a district council and the social services authority would be the county council. Thus the proposition, which is legally correct, that the Respondent Council in the present case is the same whether it is or should be discharging housing functions or social service functions is not one on which useful reliance can be placed in construing the several duties imposed on local authorities.

Lord Justice Wall has set out section 188 of the 1996 Act. Subject only to taking the time necessary to form an opinion that the person applying for accommodation may be homeless, eligible for assistance and in priority need, the duty imposed by that section must be discharged at once. In the present case, when M first applied for accommodation, the only question which the housing officer raised was whether she was homeless, being really unable to be accommodated at home with her mother. It did not take long for the officer to be sufficiently satisfied of that. As for priority need, she was then 17, and she had not been in care. Mr Wise, on behalf of M, submitted that to establish that she had not been in care, though necessary, was not sufficient for the housing officer to be able to come to the view that she might be in priority need. This turns on the terms of the 2002 regulations which Wall LJ has set out, which bring children of 16 and 17 within the category of those in priority need, but with certain exceptions, the relevant one being by reference to section 20 of the Children Act 1989.

Mr Wise submits that any council officer, even in the homeless persons unit of the housing department, had only to look at M, with the limited knowledge of her that was available on 6 April 2005, in order to see that she was someone to whom the Council owed a duty to provide accommodation under section 20 of the 1989 Act. The relevant duties might arise under sub-sections (1) or (3). In each case the child must be a “child in need”, as defined by section 17(10) of the 1989 Act. If the child is to come within section 20(1), he or she must appear to the Council to require accommodation as a result of one of three circumstances. The first is not relevant. The second is that he or she has being lost or having been abandoned. It does not seem to me that a 17-year old girl turned out of home by her mother is within this phrase. The third is that the person who has been caring for him or her is “prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care”. Given that what M needed was accommodation, and given that accommodation existed at her mother’s home, it does not seem to me to be plain and obvious, at any rate, that her mother could properly be described as being prevented from providing her with accommodation. I do not mean to underestimate her mother’s difficulties, given her own ill health, but not being willing to provide accommodation is not the same as being prevented from providing it. So far as section 20(3) is concerned, apart from the child having to be a child in need, the local authority would have to consider that her welfare is likely to be seriously prejudiced if they do not provide her with the accommodation.

It seems to me that almost all of the questions arising under section 20(1) and (3) raise issues to which the relevant local authority, through its social services staff, would need to give careful consideration before being satisfied that the duty was owed to a particular child. I therefore cannot accept Mr Wise’s submission that it must have been plain to any council officer, when M first applied for accommodation, that she was someone to whom a duty to provide accommodation was owed under section 20, so that she could not be someone in priority need, and that the duty under section 188 was not owed to her.

If his submission were correct, it would have a striking consequence, because the local housing authority could not accommodate her, however urgent her need for accommodation, and however far away the nearest social services office might be.

It seems to me that, except in the case of a child who is known to have been in care already, it is likely to be the case that a 16 or 17-year old who applies to the local housing department on the basis that he or she is homeless should be accommodated for the time being under section 188 (assuming that preliminary enquiries suggest that he or she really may be homeless). The local housing authority is then obliged to pursue an investigation as to whether the full duty is owed under section 193. In the case of a child of 16 or 17 it is likely to be appropriate also to involve the social services department in case care issues arise. Wall LJ has quoted from the guidance provided both on the accommodation of children in need and their families and on homelessness, which emphasise the need for a co-ordinated approach on the part of the agencies concerned. I agree with his comments about that guidance and with his concluding general observations.

I also agree that Mr Wise cannot succeed on his alternative case. He said that, if not apparent at once, it must have become apparent to the Council after 6 April 2005 as a result of its investigations that M was a child in need to whom a duty to provide accommodation was owed under section 20 of the 1989 Act. The evidence shows that the Council experienced difficulties in pursuing any effective enquiries as to M’s position. It would be necessary for Mr Wise to show that her accommodation should be treated as having been provided by the Council under section 20 from no later than about 20 June 2005, in order that the 13 week requirement would be satisfied by the remaining period during which she was accommodated by the Council during 2005. Thus he would have to show that, by that date, the Council’s knowledge of her circumstances was such that it must have concluded that she was owed the duty under section 20(1) or section 20(3) and that therefore she was not in priority need. The evidence does not begin to justify that submission.

I agree with Pill LJ that there may be cases in which the facts that the housing office staff know, or come to know in the course of their enquiries under Part 7 of the 1996 Act, about a 16 or 17-year old child put them on notice that duties under the 1989 Act may be owed to that child, and require them to take steps to enable an assessment to be carried out, by social services staff from the relevant authority, of the child’s needs and circumstances under that Act. Nothing in the evidence in this case would support a submission that this stage was reached in the present case, let alone the more far-reaching submission made by Mr Wise that the facts showed not merely that an assessment was needed, but that the result of the assessment was plain.

For those reasons, and in agreement with Wall LJ, I would dismiss this appeal.

The duties owed by local authorities under Part III of the Children Act 1989 (“the 1989 Act”) and Part VII of the Housing Act 1996 (“the 1996 Act”) are intertwined in the way explained by Wall LJ in his recital of the statutory provisions. As Wall LJ states at paragraph 41 to 43 of his judgment, the range of services available to a child who is “eligible”, within the meaning of paragraph 19B of Schedule 2 to the 1989 Act, is wider under the 1989 Act than that available to a child under Part VII of the 1996 Act. Of relevance in the present situation, in which M is now aged over 18, is the existence of continuing duties under Section 23C of the 1989 Act to a “former relevant child”.

I agree with Wall LJ, and for the reasons he gives, that upon an application of the statutory scheme, M’s claim that there has been a breach of duty breaks down on the facts. These include the circumstances in which M presented herself to the council, the information she supplied, her subsequent lack of co-operation with enquiries and, later, her attaining the age of 18 before her release from detention. I also agree with Lloyd LJ, for the reasons he gives at paragraphs 86 and 87 of his judgment, that it would not have been plain to a council officer when M first applied for accommodation that she was someone to whom a duty arose, under Section 20 of the 1989 Act, to provide accommodation.

I wish to express agreement with Wall LJ’s observations at paragraph 72 of his judgment. Performance of Housing Act duties towards children does not release local authorities from their duty, under Part III of the 1989 Act, to identify children in need and to perform their duties under the Act towards such children. I do not accept the submission of Mr Lewis, for the council, that recourse to the provisions of the 1989 Act should be treated as a last resort. The Guidance provided in paragraph 5.72 of the Framework, cited by Wall LJ at paragraph 58, and in paragraph 8.37 of the Homelessness Code, cited by Wall LJ at paragraph 65, in my view accords with the statutory scheme or schemes.

The duties of local authorities to children under the 1996 Act and the 1989 Act are separate though they run in parallel and to some extent overlap. A child applicant for housing is most unlikely to be aware of the statutory nuances.

That being so, there are likely to be cases where, in my view, the housing authority’s duty extends to a duty, to be performed in the way suggested in the above guidance or otherwise, to take action which enables an assessment for the purposes of Section 17(10) and Section 20 of the 1989 Act, cited by Wall LJ at paragraphs 36 and 37, to be conducted. That applies whether the relevant social services authority is or is not a part of the same local authority as the housing authority. For the reasons given, that duty was not, however, breached in the present case.

I agree that the appeal should be dismissed.