Berhe & Ors, R (on the application of) v Hillingdon & Anor

MR JUSTICE SULLIVAN: Each of the four claimants in these proceedings arrived at Heathrow Airport during 2000 as an unaccompanied asylum seeking child ("UASC"). None of them had any parent or other relative to receive them in the United Kingdom and each of them was destitute in the sense that they had no accommodation and no means of supporting themselves in this country. They were each referred to the Social Services Department of the defendant by the immigration authorities or by airport staff.

Since April 2000, the National Asylum Support Service ("NASS") has been responsible for providing support to adult asylum seekers and their dependent children. NASS does not provide support for UASCs. They are the responsibility of the relevant local Social Services authority, acting under the Children Act 1989 ("the 1989 Act").

The four claimants received assistance (to use a neutral term) from the defendant's Social Services Department. They are all now adults (over the age of 18) and each is in full time further education. One of the claimants has been recognised as a refugee, two have been granted exceptional leave to remain for four years or thereabouts, and one is awaiting the determination of her asylum claim. Given that Heathrow Airport is situated in the London Borough of Hillingdon, it is not surprising that, among the London boroughs, the defendant's Social Services Department gives assistance to the largest number of UASCs: 620, or 13 per cent of the total of 4,762 UASCs in London as at February 2003.

This imposes considerable burdens on the defendant, but it is important to note that, subject to the matter referred to below, the claimants are not complaining in these proceedings about the adequacy of the assistance that they received as children from the defendant's Social Services Department. Their complaint is that the defendant owed and still owes duties to them under the Children (Leaving Care) Act 2000 ("the 2000 Act") and has failed to discharge those duties.

The defendant contends that it did not and does not owe the claimants any duties under the 2000 Act. The 2000 Act imposed duties on local authorities looking after children to prepare them for the time when they would cease to be looked after and to help them, for example, with assistance with employment, education and training, once they had ceased to be looked after.

For the purposes of this judgment, it is unnecessary to rehearse those duties in detail. Suffice it to say that the 2000 Act makes provision for what might be described as a "comprehensive after care service" for children who have been looked after by a local authority to ease their passage into adulthood.

Duties are owed to an "eligible child", a "relevant child" and a "former relevant child", all as defined in the 2000 Act. Section 1 of the 2000 Act inserted new paragraphs 19A to 19C into Part II of Schedule 2 to the 1989 Act.

Paragraph 19B provides, so far as relevant:

Section 2 of the 2000 Act inserted new sections 23A to 23C into the 1989 Act. Section 23C(1) provides:

All the claimants were being assisted by the defendant when they attained the age of 18. Although there is a dispute about the age of one of the claimants -- Wahdat Munir claims that he was under 16 on arrival in the United Kingdom, whereas the defendant contends that he was between 17 and 18, and in any event over 16 -- there is no dispute that the remaining three claimants were aged 16 when they began to be assisted by the defendant.

Thus, for the purposes of the definition of "eligible child" in section 19B(2)(a) above, all the claimants were aged 16 or 17 while they were being assisted by the defendant. The prescribed period for the purposes of section 19B(2)(b) is 13 weeks and the prescribed age is 14: see the Children (Leaving Care) (England) Regulations 2001.

There is no dispute that all the claimants were assisted by the defendant for periods well in excess of 13 weeks which began after they had reached the age of 14 and ended after they had reached the age of 16.

On behalf of the defendant, Mr Levy QC submitted that none of the claimants was an "eligible child" for two reasons:

(a) Although they had received assistance from the defendant's Social Services Department, they had not been "looked after" by the defendant.

(b) Even if they had been "looked after", the period during which they had been looked after had not commenced before they reached the age of 16 (subject in Wahdat Munir's case to the court accepting the defendant's assessment of his age).

It is convenient to dispose of point (b) at the outset. In effect, the defendant invites the court to read section 19B(2)(b) as though it said, substituting the prescribed period and age:

The words in square brackets do not appear in the section and no good reason has been advanced as to why it would be appropriate for the court to insert them.

The 2000 Act introduced a very detailed "after care" Code. Those entitled to benefit under the Code are carefully defined. Where there are exceptions or qualifications to entitlement, they are spelt out in the Act and the accompanying Regulations. Against the background of such a detailed legislative scheme, there is simply no warrant for the addition of further exceptions or qualifications.

Mr Levy referred to the Department's Guidance on the 2000 Act, published under section 7 of the Local Authority Social Services Act 1970. Such guidance must be followed by local authority Social Services Departments unless there are exceptional circumstances which justify them in taking a different course in any particular case.

While the Guidance is authoritative as to the policy to be followed by local authorities' Social Services Departments under the Act, it is not, and does not purport to be, definitive as to the proper interpretation of the Act. That is a matter for the courts to decide. In any event, the Guidance does not support the submission advanced on behalf of the defendant. Paragraph 2 under the heading "Who is affected by the new legislation?" is as follows:

The defendant's approach would require the insertion of the words "before and" after the word "time" in that passage. There is nothing in the Guidance which suggests that their omission was an oversight.

It follows that the answer to the question: was each of the claimants an "eligible child", and is each of them now a "former relevant child", depends upon whether they were being "looked after" by the defendant whilst they were children. In ordinary language, they were being looked after by the defendant because there was nobody else who was able to look after them in the United Kingdom. But "looked after" is, in this context, a term of art. Section 22 of the 1989 Act defines those children who are "looked after" by a local authority. As originally enacted, section 22(1) was as follows:

By subsection (2):

Paragraph (a) in subsection (1) is concerned with children who are the subject of care orders and has no application to the present proceedings.

The claimants contend that they fall within paragraph (b) because they were all provided with accommodation by the defendant in the exercise of its Social Services functions. The defendant maintains that it did not provide the claimants with accommodation, hence they were not "looked after" by the defendant.

It is common ground that the assistance given by the defendant to the claimants, whether or not it included the provision of accommodation, was given in the exercise of the defendant's Social Services functions.

Section 22 has been much amended. By section 107 of, and Schedule 5 to, the Local Government Act 2000, the words "are social services functions within the meaning of" were substituted for the words "stand referred to their social services committee under". Nothing turns on this amendment. Whatever the defendant was providing for the claimants, it was providing it as a Social Services function.

Section 22 was also amended by section 2 of the 2000 Act, subsection (2) of which added the words "apart from functions under sections 23B and 24D" at the end of paragraph (b) in subsection (1).

That exclusion has no direct relevance to the circumstances of the four claimants in the present proceedings, but it does demonstrate that when Parliament wishes to exclude the provision of accommodation under certain Social Services functions from the "looked after" definition, it does so in express terms.

Before considering what assistance was actually given to the four claimants by the defendant, it is helpful to refer to its relevant powers under Part III of the 1989 Act. Part III is concerned with "local authority support for children and families". Under the subheading "Provision of services for children and their families", the relevant provisions of section 17 are as follows:

It is unnecessary to set out the detail in Part 1 of Schedule 2. It sets out a comprehensive range of powers and duties.

Subsection (3):

Pausing there, it is not in dispute that each of the four claimants was a child in need for the purposes of the 1989 Act.

Under the heading "Provision of Accommodation for Children", section 20 provides, so far as relevant:

Again, pausing there, the defendant accepts that whatever assistance was required by the four claimants, it was required as a result of one of the circumstances described in paragraphs (a) to (c) in subsection (1) above. In some cases, the claimants do not know where their parents are, or indeed whether they are alive or dead. In all four cases, there is no one who can provide the claimant with suitable accommodation and care in the United Kingdom.

Returning to section 20, subsection (3) provides:

It will be remembered that a local authority may make arrangements for services to be provided on its behalf: see section 17(5)(b). Subsection (8) of section 20 provides:

As amended by the Care Standards Act 2000, the relevant provisions of section 23 of the 1989 Act are as follows:

The Regulations referred to in paragraph (f) are the Arrangements for Placement of Children (General) 1991 Regulations. They set out the considerations to which local authorities must have regard when making "any other arrangements" to accommodate children not in care: the type of accommodation, who will be responsible for the child, what services will the child receive, et cetera. They also make provision for the keeping of appropriate records.

The powers conferred by section 17 and 20 of the 1989 Act have been considered by the Court of Appeal in three cases. In chronological order, those cases are R (G) v Barnet London Borough Council [2001] EWCA Civ 540, [2002] LGR 34 on 11th April 2001; R (A) v Lambeth London Borough Council [2001] EWCA Civ 1624, [2002] LGR 163 on 5th November 2001; and R (W) v Lambeth London Borough Council [2002] EWCA Civ 613, [2002] LGR 351, on 3rd May 2002.

None of these cases was concerned with a lone child. In each case, there was a family consisting of a mother and child, or children. In G, Ward LJ concluded _(obiter_) that section 17 could be used to provide accommodation for the mother and child (paragraph 28). The majority of the Court of Appeal in A, Chadwick LJ and Sir Philip Otton, concluded that there was no power to provide accommodation under section 17 (paragraphs 45 and 54). Laws LJ found it unnecessary to decide the point (paragraph 40), but he did express the view that section 20 made provision for children "who for one reason or another are, to use a summary expression, on their own" (paragraph 31). Chadwick LJ agreed on this point (paragraph 52).

In W, the court decided that the decision in A was per incuriam, and that there was a power (which the Council was entitled to reserve for extreme cases) but no duty to provide accommodation for families under section 17 (paragraph 83).

These three cases have been appealed to the House of Lords and a decision is awaited. In the meantime, Parliament has resolved the uncertainty as to the ambit of section 17 by enacting section 116 of the Adoption and Children Act 2002:

Subsection (3) of section 116 is not relevant for the present purposes.

Section 116 came into effect on 7th November 2002, too late to affect the four claimants in the present proceedings, each of whom had turned 18 before that date.

Mr Levy submitted that section 116 did not amend, but merely clarified, the pre-existing state of the law under Part III of the 1989 Act.

In the light of the Court of Appeal decisions referred to above, and in particular the decision in W, I accept that submission in so far as it relates to subsection (1) in section 116. Unless and until W is overturned on this point in the House of Lords, there is and always was a power to provide accommodation under section 17.

I do not accept the submission in so far as it relates to subsection (2) in section 116. Upon the basis that there always was a power to provide accommodation under section 17, Parliament could have excluded the provision of accommodation in the exercise of that function in section 22(1)(b), as originally drafted.

The reference to "any functions" in paragraph (b) is sufficiently broad to embrace the provision of accommodation under both section 17 and section 20 of the 1989 Act. When Parliament said "all functions", it meant what it said and not "all functions apart from functions under section 17 of the Act".

As mentioned above, when Parliament has wished to cut down the breath of paragraph (b) in section 22(1), it has done so in express terms. Section 2(2) of the 2000 Act excluded the provision of accommodation under sections 23B and 24D of that Act from paragraph (b) in section 22(1). There was an opportunity, on the basis that there was also a power to provide accommodation under section 17 at that time, to exclude the provision of accommodation under that Social Services function, but the opportunity was not taken at that stage. The opportunity was taken to change the law in this respect as from 7th November 2002, perhaps because it was felt that, with greater clarity, there might be a more extensive use of the section 17 power.

Whatever the reason for the change may have been, it was not intended to disadvantage the great majority of lone children such as the claimants. On 2nd June 2003, the Department of Health issued a Local Authority Circular LAC (2003) 13, giving "Guidance on Accommodating Children in Need and their Families" in the light of the amendments to the 1989 Act, which had come into force on 7th November 2002.

Under the heading "Framework for the Assessment of the Children in Need and their Families," the Guidance says this:

Thus, as a general rule, the exclusion which was introduced into paragraph (b) of subsection 22(1) in November 2002 is not expected to affect most lone children looked after by local authorities, but there may be exceptions to that general rule where the child does not want to be, and does not need to be, looked after by the local authority.

The assistance given by the defendant to the claimants has to be considered against this legal and policy background. What did the Council actually provide for these claimants?

The details of the Council's dealings with each of the four claimants is contained in four witness statements made by a qualified social worker, Hilda Appiah-Adu, who is the Locum Team Manager in the defendant's Young Persons' Asylum Team. For the purposes of determining these applications for judicial review, it is unnecessary to rehearse the detail in her witness statement, save to note that it does show the degree of care and attention paid by the defendant to the claimants' needs.

It is sufficient to set out the summary of the position, as described in the witness statement of Rosamund Ann Morris, a qualified social worker who is now the Service Manager responsible for Children and Families Services in the West of Hillingdon. This includes both the Children's and the Young Persons' Asylum Teams. She explains that UASCs who are assessed as being under 16 years old on arrival are dealt with by the Children's Asylum Team and are normally accommodated under section 20 of the 1989 Act. UASCs who are assessed as being over 16 years old on arrival are dealt with by the Young Persons' Asylum Team. Their needs are assessed under section 17 of the 1989 Act and:

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, focussing upon the precise terms of sections 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.

Having described the assessment process, Ms Morris says this in paragraph 47 of her witness statement:

Pausing there, it is not in dispute that these children in need "require somewhere to live" as a result of one of the circumstances set out in paragraphs (a) to (c) in section 20(1). They have no parent or carer who can provide them with suitable accommodation in the United Kingdom (see above).

One might have thought that since the defendant acknowledges that such children "require somewhere to live", it would also accept that, in the words of section 20(1), they "require accommodation", but it does not. Miss Morris' witness statement continues thus:

Those local young people of 16 to 17, who are described as being "supported in housing provision in the community", are, in ordinary language, being provided with housing accommodation.

The Council's approach is summarised in paragraph 52 of Miss Morris' witness statement:

Miss Morris then deals with the four individual cases. In each case, she says that the claimant was "provided with housing provision", as well as a range of other services, such as subsistence, assistance with their asylum claims, assistance with obtaining education and medical services, assistance with living skills, et cetera. The common thread is that in addition to subsistence, each claimant was "provided with housing provision".

Eliminating tautology, the defendant's case boils down to this: it seeks to draw a distinction between providing "housing" for children in need who require "somewhere to live" as a result of the circumstances mentioned in paragraphs (a) to (c) in section 20(1) of the 1989 Act, and providing such children with "accommodation" to meet their acknowledged need for somewhere to live. In my judgment, the defendant's argument is mere sophistry, based upon a distinction without a difference.

Whatever the defendant thought it was doing, it was in ordinary language providing these claimants with accommodation. It was providing accommodation because, on any reasonable view, the claimants required accommodation. The claimants required accommodation as a result of one of the circumstances described in paragraphs (a) to (c) in section 20(1). Whether it was providing that accommodation under section 17 or section 20 does not matter for the purposes of these proceedings, since the provision to the claimants as children ceased prior to 7th November 2002 (although they are still accommodated).

In his submissions, Mr Levy referred to the fact that in 1989, Parliament would not have envisaged the problems now posed by UASCs, to the resource implications of the increased numbers of UASCs, and to the Department's Guidance above. None of these matters has any bearing whatsoever on the meaning of "accommodation" in sections 20(1) and 22(1).

Mr Levy submitted that the words "provide accommodation" and "require accommodation" in section 20(1) should not be considered in isolation but in the context of Part III of the Act as a whole. I agree, but there is nothing in Part III, which does contain a considerable number of definitions as terms of art of commonly used words, such as "child in need" and looked after", which suggests that "accommodation" should be given anything other than its normal and natural meaning in sections 20(1) and 22(1).

Section 23 deals with how accommodation may be provided. It does not have to be provided in a community home. It may be provided by the making of other "appropriate arrangements". It is common ground that such arrangements could include accommodating a child in need in the type of hostel (a converted hotel containing 50 self-contained flatlets) in which two of these claimants were accommodated.

It is not suggested that the "housing" provided for the other two claimants could not have been provided under paragraph (f) in section 23(2) if it was felt appropriate to the needs of that particular child, for example, for greater independence than provided by hostel-type accommodation.

The Secretary of State was joined as an interested party in these proceedings. Mr Kovats, who appeared on his behalf, submitted that "accommodation" did have a particular meaning for the purposes of Part III of the Act. He explained that the Secretary of State was concerned that Social Services Departments might consider that simply placing lone children in bed and breakfast accommodation would adequately discharge the local authority's duty to them under section 20 if "accommodation" meant no more than the provision of a roof -- any kind of roof -- over the child's head.

That issue does not arise in these proceedings. The adequacy of the accommodation operated provided by the defendant for these four claimants is not in issue. As indicated above, the Council did not merely provide the claimants with housing (aka accommodation), it also provided the claimants with a wide range of services, including subsistence.

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 being "looked after" by the defendant.

The alternative would be that nobody was looking after these lone children. It may well be that some lone children do not need looking after, but the presumption in the Department's Guidance is surely a reflection of the fact that most lone children will need to be looked after by someone.

In his submissions on behalf of the claimant, Mr Luba QC pointed out that the defendant's approach to its duty under section 20 was contrary to that set out in the Secretary of State's Guidance. The Guidance does not draw a distinction between lone children aged under 16 and over 16, and the presumption is that UASCs (whether over or under 16 on arrival) will be owed a duty under section 20 unless there are particular features which indicate an alternative response, such as the provision of services under section 17.

The defendant's practice, set out above, in effect reverses that presumption in the case of UASCs who are over 16 on arrival. Again, the issue does not arise in the present case, since the Guidance was issued after all of the claimants had become adults. But the defendant will clearly have to reconsider its present practice in the light both of the Guidance and of the terms of this judgment.

For these reasons, all four applications succeed and I grant each of the claimants a declaration that he/she was an eligible child for the purposes of section 19B of the 1989 Act and is now a "former relevant child" for the purposes of section 23C of the Act; and a declaration, as sought in paragraph 3 of the claim form, in each of the cases, that the claimant is in priority need within the meaning of Article 4 of the Homelessness (Priority Need for Accommodation) (England) Order 2002.