C, R (on the application of) v Nottingham City Council

This is a renewed application for permission to appeal a decision of HHJ Inglis, sitting as a High Court judge, the decision being given on 12 October 2009. Permission was originally refused on paper by Moses LJ.

The two claimants are now aged a little more than 18. Their case is that they are now "former relevant children" so as to give rise to obligations on the local authority under sections 23A, 23B, 23C of the Children's Act and to confer status on them under Part VII of the Housing Act. To establish that case they would have to show that they were accommodated while children aged 16 or 17 by the local authority, pursuant to its duties under section 20(1) of the Children's Act, for a period of 13 weeks.

To make out that case it is the submission of Mr Suterwalla that these children were in 2008 children in need in that they were without independent means of accommodation and support; secondly that they fell within section 20(1)(c) of the Children Act because the relationship with their respective parents had broken down such that their parents were "prevented" from providing them with suitable accommodation and care; thirdly, that the respondent's children's services department were aware of the fact that they were children in need and so prevented; and his fourth submission is that, in the light of the first three submissions being successful, then the accommodation with which the children were provided by the housing department of the local authority should be deemed to be accommodation supplied pursuant to the local authority's duty under section 20. If that can be established they would be former relevant children.

The local authority have been, represented here today by Mr Lock, pursuant to the invitation by Moses LJ, and Mr Lock has sought to resist permission to appeal, perhaps not because he does not recognise the possibility that if certain of the submissions were established there might not be an important point at issue but because he says: a) the important point at issue did not arise in this case and b) that the authority are prepared to provide assistance and help to the appellants if they request it and thus this appeal is purely academic.

Why he says this is not a case in which any point of importance arises is because he says, first, that there is doubt whether these children ever were children in need, they certainly were not designated as such; secondly he says that the circumstances in which these children left their homes were not ones in which it could be said they were prevented from being at home within the meaning of section 20(1)(c). In his written submissions he says that this is the view that the local authority have formed since the application in this case was launched, but he says that is a view that cannot be challenged as Wednesbury unreasonable and what he has sought to do is to take me to certain of the documents in this case.

So he says that this is not a case in which the local authority could be said to be aware of the fact that they were concerned with children in need. It could not be said to be aware that they fell within section 20 and thus, he says, on no basis could it be right to deem accommodation being supplied by the housing department as being provided under section 20.

My reading of the judge's judgment is that he did not refuse permission on the grounds that these were not arguably children in need, nor that they did not arguably fall within section 20(1)(c) of the Children Act, and although I see that there are serious arguments to be had in that area if Mr Lock on behalf of his clients were to pursue it, this is not as it seems to me the time to resolve those questions. It certainly seems to me to be arguable that these children were children in need; it certainly seems to me to be arguable that, because a broad interpretation has been put on section 20(1)(c), that these children were prevented from being at home.

If that is so, i.e. if the circumstances of this case were such that there was a stage under which the local authority owed a duty under section 20 of the Children Act to provide accommodation, the question that would arise would be whether, by virtue of the fact that accommodation being supplied by the housing department, that accommodation should be deemed to be accommodation being supplied under section 20.

The judge at paragraph 21 of his judgment, having cited a passage from the speech of Baroness Hale in R(M) v Hammersmith & Fulham LBC [2008] UKHL 14 at para.44 and having referred to R(G) v Southwark LBC [2009] UKHL 26, which was the second of two House of Lords authorities, said this:

I pause just to say that that paragraph seems to me to make it clear that the judge found arguable that the local authority were aware of the circumstances that gave rise to the obligation under Section 20. The important point from the paragraph is that he is suggesting that the local authority must clearly have done something if the accommodation is to be attributed to them as part of their duty under section 20.

Is that what the two House of Lords authorities suggest as necessary? In the first, as I would understand it, the children's services department had no knowledge of the position of the children who obtained accommodation under the housing department and in that case the accommodation was not attributed to the local authority in pursuance of its duty under section 20. In the second case the children's services department of the local authority effectively arranged or certainly encouraged the provision of accommodation by the housing department, and that was held to be accommodation deemed to be provided under section 20. If it is established that these children were in need and if it is established that they fell within section 20(1)(c), one has here a situation which is between the two cases and, as it seems to me, an important point arises as to whether, in circumstances in which a local authority knows of the circumstances which give rise to a duty under section 20 and where a separate department of that local authority is providing accommodation under the housing legislation, that should be deemed to be accommodation being provided under section 20.

That, as it seems to me, points to permission to appeal being given. Should one shrink from doing that where the local authority are saying that services are required by these children they will be provided? In my view one should not shrink from giving permission by virtue of that factor first because, as it seems, to me a wider issue is involved, and second because if it be that as a matter of law they are entitled to certain provisions under the Act and entitled to establish a status under the Housing Act, that is something that should be open to them.

I of course appreciate that by giving permission to appeal one is putting the local authority to the costs of having to fight the case and indeed it means that publicly funded appellants are also utilising scarce resources. But I have heard this application for over an hour and in one sense it should be as quick to argue out the point as to argue out as to whether the point is arguable. Hopefully an appeal can be concluded in a reasonably short time once people get their tackle in order, but I grant permission to appeal.

I did not mention the protocol point in the judgment just delivered, which perhaps indicates my view about whether permission to appeal should be given in relation to that point. My understanding, amongst other things, is that a protocol is in existence, at least in draft, and it would not be right to take up the Court of Appeal's time considering that aspect on any view.