G, R (on the application of) v London Borough of Southwark

This is an application for permission to appeal against a decision of Simon J given on 15 November 2007. The applicant is seventeen years old and will be eighteen on 15 February next year. On his behalf it is submitted that the London Borough of Southwark are liable to make arrangements for him under section 20 of the Children Act 1989. The issue is one of accommodation. He has sought acceptance by the Borough of a section 20 duty in that respect. The position of the local authority is that the section 20 duty does not arise on the facts of this case by way of providing accommodation. They submit that their duties to the applicant are sufficiently met by an offer to help him with obtaining housing, which they would propose to give under the Housing Act.

The application came before me on Wednesday of this week: that is two days ago. That is, of course, within a month of the decision of the judge. Mr Wise appeared for the applicant and produced a detailed skeleton argument which raised issues under both statutes, referred to authority, and sought to place reliance on the 2002 Regulations.

I was obviously concerned about the position of a young person, but did not find the position as straightforward as Mr Wise in his submissions first submitted it was. What I did was to adjourn the application until today, to be listed as an application to be followed by the hearing of the appeal if permission was granted, and a two-Lord Justice court was accordingly arranged and has heard the application this morning. The proposed respondents acted with commendable speed in their reaction to my proposal and a skeleton argument has promptly been prepared by Mr McGuire, who also appears for the authority today, supported by appropriate representatives of the authority.

Time is limited today too, and the time estimate was initially, on Wednesday, an estimate of one and a half hours, with which the borough have not disagreed. The applicant is not present today and I will refer to that in a little more detail in a moment. Having considered the skeletons and heard both counsel, we consider that an important point is raised on the scope of section 20. There are a considerable number of authorities dealing with section 20. The strands of reasoning which emerge from them are in some respects diverse. The borough rely in particular on a recent decision of Holman J in H & others v Wandsworth LBC and Others [2007] EWHC 1082, at paragraph 64, and they seek to apply the reasoning of the judge in that case. They claim that, on the basis of the assessment they made, the action which they have taken is appropriate and in accordance with their duties. Mr Wise has referred to other authority and to the importance of the view expressed in this court and elsewhere that authorities should not be permitted readily to sidestep their obligation under section 20: an expression used by Arden LJ in R(S) v LB of Sutton LBC [2007] EWCA Civil 790. Mr Wise has referred to other cases, which are summarised in his skeleton argument.

Mr Wise has referred the court to the assessment made by the proposed respondents. He claims that the effect of that assessment, as a matter of fact, is that while not formally accepted by the authority (and it has not been), it amounts to a finding of fact, which gives rise to a section 20 duty.

I have come to the conclusion that permission to appeal should be granted. I would give it generally, though from what I have heard I am not impressed by there being an independent argument under the 2002 Regulations that is the Homelessness Priority Need for Accommodation (England) Order 2002. That the order would -- it appears to me at present -- operate only in the event of a section 20 duty, as claimed, being established; but, as I say, I would give leave generally so that the scope of section 20 can be considered by the court.

The question arises as to whether interim relief should be given and, first, whether the court, having given permission, should go on today to determine the application. I have come to the conclusion -- and I think counsel accept this on consideration -- that it would not be appropriate. The point raised is claimed to be of some general importance, and to deal with it within a limited time on a Friday near the end of term would not be appropriate, especially as there is a real possibility, to put it no higher, that the court would need to reserve judgment, in which case the practical position of the applicant would be no different from merely granting permission, with an order for an expedited hearing. I have in mind, of course, that the Christmas vacation is upon us and there will not be a hearing for several weeks.

Clearly the court is concerned about the position of a seventeen-year-old young man. Enquiries have been made about him, and following my remarks on Wednesday a statement has been submitted by Mr Wise’s instructing solicitor. The applicant is at present “sofa-surfing”, as the expression goes. He was offered accommodation under the Housing Act at a Salvation Army hostel. He has declined to take up that offer for reasons given in the witness statement of Mr Oliver Studdert, solicitor. I do not propose to read them. As far as they are relevant, the court will no doubt have regard to them. A point raised is that it is in a location where, because of the conditions which exist in this part of London, it would be unsafe for the applicant to reside. He had, until the assessment had been made by the local authority, lived at what has been described as “Gypsy Hill” -- accommodation with which he was perfectly happy.

The applicant has not kept in touch either with the local authority or, it appears, with his solicitor, as one would have expected a reasonable client to do in the circumstances. He claims that when he rejected the local authority proposal for the Salvation Army hostel, they made it clear they could do nothing more for him. They dispute that, and Mr McGuire has said in terms that they do not regard that as a final offer. If the applicant presents himself to their appropriate department, they will perform their duty as they see it -- that is, under the Housing Act -- towards him, and he has given them no opportunity to do that. The court was told that the applicant sometimes cannot be contacted by mobile telephone. I have to say that he has not cooperated as one would have expected in the circumstances, in my view on what I know at the moment. I have regard also to the contents of the local authority’s letter of 7 December 2007, which sets out the position as they see it.

There was a real possibility here that, even if the court had granted leave -- and ordering, as it will, an expedited hearing -- the court would have taken no further action, having regard to the history to which I have briefly referred. However, during a short adjournment there has been discussion between counsel in which, no doubt, those instructing on either side have been involved, and the authority are prepared to give a limited undertaking. Mr Wise submits that an interim order should be made requiring accommodation for the applicant -- the appellant, as he now is -- at Gypsy Hill. I do not accept, in the circumstances and having regard to the local authority’s duty to young people and other applicants in general, that it would be appropriate to give that direction to the local authority.

However, I note the undertaking given to the court, which does depend first on the appellant accepting -- as, through Mr Wise, his counsel, he has and does -- that any accommodation provided by the local authority will be without prejudice to their legal position in relation to the extent of their duties. That is accepted by the parties, so that the grant of accommodation cannot be used at the full hearing in support of a legal argument that section 20 applies.

The undertaking offered is in these terms: that, provided the appellant presents himself to the local authority and cooperates with their procedures, they will ensure that suitable accommodation is made available to him until the determination of the appeal or, I would add, until further order.

That, in my judgment, is a very fair undertaking to give in the circumstances, demonstrating the proper concern of the authority; and I would accept it and make an order for adjournment accordingly, without directing more. I would direct an expedited hearing -- important in circumstances such as this; that does not mean that this is vacation business, but it is to be hoped that a date can be fixed early in the new term. I would put the estimated length of the hearing at four hours and I would direct that the case be heard by a three-judge court, all being Lord Justices. It is on that basis that I grant permission to appeal.

I agree; and I wish particularly to associate myself with the remarks my Lord has made on the adequacy of the undertaking in all the circumstances that has been offered by the borough. I think it would be wrong for this court to interfere on a more detailed basis with the many competing considerations which the borough must take in mind in disposing of its existing stock of accommodation for homeless young people.