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

This is an application by J.C., born on 7 October 1991, and S.C., born on 15 May 1991, for permission to apply for judicial review of what is said to be the continuing failure by Nottingham City Council to provide for the status of the two claimants under the Children Act 1989. Separately, there is an application for permission to apply for a declaration of unlawfulness in the defendants not presently having the protocol that deals with cooperation between the Housing Authority and the Children’s Services Department of the Defendant council in circumstances where a 16 and 17 year old presents as homeless and possibly in need of accommodation and other services.

J.C. is the first claimant. From age 12 when her parents separated she lived with her father, but in November 2007, aged 16, she was asked to leave by her father, the relationship having become difficult, though not, as it turns out, terminal. She had in fact that month or the month before begun a relationship with the second claimant, S.C., who was then homeless and living in a homeless persons’ hostel on M Road in Nottingham

She applied to the Housing Department and was offered a place ultimately in the same hostel, having informally lived there with her now partner S.C. for a short period of time. She shared a room with him there.

In April of 2008 she had become pregnant and there was a reference to the social services, but an assessment of no intervention being required was reached. She was receiving educational services and also she was living at 210 M Road Road.

In June 2008 both young people were evicted, having been arrested for drugs related offences. The prosecution was later dropped and the allegations that resulted in eviction were never established as facts. From June to September 2008 both claimants were accommodated in A hostel and then evicted, apparently by reference back to their arrest for drugs offences in June; and there was a decision that they had made themselves intentionally homeless for the purposes of the Housing Act 1996.

The first claimant’s pregnancy was continuing and there was a social services assessment of her and S.C.’s unborn child dated 28 October 2008. The relevance of it is that from it can be gleaned something about the activities or knowledge of the claimants, particularly the first claimant, on the part of Children’s Services. The summary and background information in that assessment of October 2008 is that J.C. was first referred to children’s services in April 2008. Their concern was raised by the support workers at 210 M Road, the young persons hostel. Concerns were about the housing situation and the fact that J.C. was a pregnant schoolgirl. It was decided after an initial assessment that there was no role for children’s services due to her receiving support for her education whilst living at 210 M Road Road. Further referral was made to children’s services on 5 June 2008 by the staff at 210 M Road following the arrest of J.C. and S.C. on drug-related charges. It was felt that this time a pre-birth assessment should be carried out and the case has remained open since this time, and that was the pre-birth assessment to which I have referred that was completed at the end of October.

In fact, at about that time in October the couple were evicted again and were accommodated by the housing department for a short time in H H homeless hostel. They still had the label of being intentionally homeless attached to them, apparently because of what had happened in June. They then went, I think shortly before the birth of the child, to live with J.C.’s father, and the relevant facts then end. In fact, J.C. remained there until the summer of this year when she went to live with her current partner and the second claimant’s child.

Analysis of risk and need gives the assessment that “at present S.C. is choosing not to live at home but is living with his maternal aunt K.S. who lives six doors away. This does not seem a long-term solution and advice has been given about the options available to S.C. once he attains the age of 16”. The detail of that advice is not clear except that it is plain from earlier that that assessment included advice to him that he could go to the housing department when he is 16 in his own account.

In May 2007, when he was 16, he did apply to the housing department and got a place at A hostel. He was evicted from there for poor behaviour after two months and then went to the Elms hostel and was again evicted. He returned to his aunt for a short time before going to M Road hostel at 210 M Road,  aged 16 Then the joint story can be taken up from November of that year as I have set out above.

Though both claimants are now 18, in its essentials to the claimants’ case is that each of them, when aged under 18, should have been treated by the local authority as someone to whom duties were owed under the Children Act 1989, and in particular they should have been treated as requiring accommodation under Section 20 of that Act and their accommodation by the housing department in hostels at various stages should therefore have been treated as accommodation under Section 20 because children’s services had either encouraged that state of affairs or known about it and adopted it as their own. The second strand of the case is that the failures of the local authority stem at least in part from failure to have a joint protocol in place between children’s services and housing departments which, had it been in place and applied, would have prevented the unlawful failure of the local authority to apply their minds to what their duties were and needs of these young people were; and the delay in establishing that joint protocol has been so great as to be unlawful and the court ought in these proceedings to make a declaration of unlawfulness in the local authority because of that failure.

In the acknowledgment of service it is said the second claimant was never dealt with by social services under the Children Act and dealt with entirely as a housing department case and it would be wrong to deal with that treatment as if it were the exercise of the Children Act function when it was not; and secondly the first claimant was provided also with accommodation under the Housing Act and not under the Children Act. It is not possible in each case to say what would have been the position had the local authority children’s services considered what it should do, if anything. And finally, the local authority is working on a protocol that recognises the need for it; recognises there is not any reason not to have one in departure from what the statutory guidance is, and so within a short period of time there will be one but there is no need and no basis for a declaration of unlawfulness.

The focus is therefore on the status of these two young people when aged 16 and 17. They were in hostel accommodation provided by the housing department of the local authority. It is right to say, as is made clear by the House of Lords in a recent decision, that one really has to look at the housing department and the children’s department as if they were two separate local authorities, as for the purposes of this case they would be in many parts of England and Wales. It happens that this local authority exercises both functions, so it is as if one is dealing with two separate authorities. The importance of the status of accommodation under Section 20 is that properly such accommodation -- that is, being looked after within the meaning of the Act -- has certain consequences. So far as Section 20 itself is concerned and the duty to accommodate, Section 20 provides in subsection (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: --

(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.”

-- And ‘prevented’ has a wide meaning and will encompass relationship breakdown to the point where a child is excluded from home or is not, because of the nature of the relationship, able to live there. Where that test is passed there is an obligation -- there is no discretion -- to provide accommodation under Section 20. The relevance of whether the status of these claimants was Section 20 accommodation, when they were 16 and 17 arises from provisions added to the Children Act from 2002 and in particular Sections 19B and 23C.

A person who -- any time over the age of 14, and in a period or periods which it ends when he is over 16 -- is looked after (it may be in care but in this case under Section 20) for more than 13 weeks is an eligible child. Someone who is still not yet 18 but who has been an eligible child and is no longer looked after becomes a relevant child. At aged 18 a relevant child is turned into a former relevant child, and under Section 23C there are continuing duties to former relevant children which are of substantial potential benefit to such people and so are substantial potential benefit to each of these claimants. They have a pathway plan and it has to be maintained. They have an advisor. They have access to other services and resources according to needs, and they have particular status with respect to the Housing Act, namely that up until 21 they remain in priority need without further questions being asked. All these potential benefits refer to these claimants, if in fact their accommodation in the hostels to which I have referred is treated as accommodation under Section 20 of the Children Act. If it is not, they do not have that status, and under the Children Act the local authority has no continuing duty towards them.

The law in this area has been the subject of two important decisions of the House of Lords, one in 2008 and one in 2009. In R (M) v Hammersmith & Fullham LBC [2008] UKHL 14 it was decided that it was not lawful for Children’s Services to rely on the provision of the housing services by a housing authority as fulfilling a child’s housing needs so that the duty, or potential duty, under the Children Act could not be discharged by referring a young person to a housing department.

There is another relevance of the Hammersmith case to which I will turn in a moment. The second, in which the leading speech was also by Baroness Hale, is R(G) v Southwark London Borough Council [2009] UKHL 26, and the established that where children’s services have in fact provided accommodation in a case where the Section 20 criteria are satisfied, that accommodation is taken to be accommodation under Section 20, even if the children’s services authority have chosen or wish to refer to it under a different label.

The submission that is made by the claimants here in paragraph 21 of Mr Sutherwalla’s skeleton argument is put forward as follows. In the present case whether accommodation provided to the claimants was in fact accommodation under Section 20 can be divided into the following sub-issues: 1) the claimant should require accommodation; 2) they require accommodation as a result of the person who had been caring for them had been prevented from providing suitable accommodation and care; 3) were they known to social services, the children’s services team, at the time that the accommodation was provided to them?

As refined and reiterated in the argument at the end of his submissions, it came, as it seemed to me, to this: that if the children’s care department direct a young person (a child still) to the housing authority and they apply for housing under the Housing Act and obtain it, then, if the circumstances were such that a Section 20 accommodation might have been appropriate, the accommodation should be taken as being under Section 20 because the diversion to the housing department has been caused by the positive act of the children’s services department, as in this case in the advice given to the second claimant when he was 15, that when he was 16 he could go and apply for housing. Secondly in June 2008 in respect of the first claimant, who had not at an earlier stage been dealt with by childrens’ services except by a reference in April which resulted in the assessment, the short assessment that I have referred to and to an extent in the unborn child assessment in October: In her case she was someone who was being accommodated under the Housing Act, but once children’s services came to know that that was the case and knew that the Children Act criteria might be satisfied, they should be taken, by having done nothing, to have adopted the accommodation under the Housing Act as their own; and so the accommodation in her case between the early summer and autumn of 2008 -- more than 13 weeks -- should be treated as being under the Children Act.

The submissions have focussed on that part of the speech of Baroness Hale in M v Hammersmith that centred on paragraph 44. Baroness Hale said:

“It is one thing to hold that the actions of a local children’s services authority should be categorised according to what they should have done rather than what they may have thought, whether at the time or in retrospect, that they were doing. It is another thing entirely to hold that the actions of a local housing authority should be categorised according to what the children’s services authority should have done had the case been drawn to their attention at the time. In all of the above cases [that is, the cases that have been cited to the House], the children’s services authority did something as a result of which the child was provided with accommodation. The question was what they had done. In this case, there is no evidence that the children’s services authority did anything at all. It is impossible to read the words ‘a child who is…provided with accommodation by the authority in the exercise of any functions...which are social services functions within the meaning of the Local Authority Social Services Act 1970...’ to include a child who has not been drawn to the attention of the local social services authority or provided with any accommodation or other services by that authority. Once again, had this been a non-metropolitan authority, the housing authority could not have provided accommodation under section 20 and the social services authority could not have provided interim accommodation under section 188. The position cannot be different as between the unitary and the non-unitary authorities.”

In the Southwark case there is an illustration that is cited by both sides, where the social services arranged for bed and breakfast accommodation at a homeless facility, which in fact was accommodation in the events that happened that continued for some time, and the question was whether that accommodation had been provided by the social services department or by the housing department. The authority, having there as here both functions, had contended for the Housing Act because it could have avoided Section 20 accommodation. The child continued to be provided with accommodation that had been set in train by the social services department and, since on the analysis of the House the core assessment that resulted had plainly identified the obligation to provide accommodation under Section 20, the local authority were not allowed to put the Housing Act label on that accommodation which had been provided at the instance of the social services department.

This is a permission hearing: I have to consider whether the proposition that is made on behalf of both these young people is an arguable proposition -- that is, that it is reasonably arguable that the local authority should be treated as having provided accommodation under Section 20 when they came to know of the circumstances of accommodation by the Housing Department, but knew also of the circumstances that might give rise to an obligation to house under Section 20. In my judgment, considering the terms of paragraph 44 and the demarcation clearly set out in that case, it is not reasonably to be attributed to the actions of the social services department that the accommodation of either of these 2 Claimants was under section 20 of the Children Act 1989.

There are illustrated by the facts of this case possible unlawful actions by the local authority. One of them, in the light of the way in which the law has developed, is that the law requires a housing authority faced with a young person aged 16 or 17 that has housing and possibly other complex needs to refer that young person to social services. A failure to do so may be unlawful. It may be that there are other failings, if social services carry out an assessment which is inadequate, and come to the conclusion that housing is not required when it is, but they are not the unlawful actions that are contended for here in each case in my judgment; The proposition which is not really arguable, is that the children’s services should be treated as having brought about the accommodation for these young people when it did not do so; and in those circumstances, although there is scope for allegations of unlawfulness, it does apply to any question of what the nature of the accommodation was, and this seems to me to be quite different from the House of Lords case in which the social services department responsible for having provided accommodation has put a different label on it from the one it ought to bear..

The second area of the application for permission is to apply for a declaration of unlawfulness. I decline to do so. This is a case that is dependent on the duty of the local authority to follow guidance, and there are two strands of the guidance, but it is sufficient to check the Homelessness Code of Guidance for Local Authorities July 2006 version in chapter 12 which in paragraph 12.6 provides:

“In all cases of uncertainty as to whether a 16- or 17-year-old applicant may be a relevant child or child in need, the housing authority should contact the relevant children’s services authority and, where necessary, should provide interim accommodation under s.188, pending clarification. A framework for joint assessment of 16- and 17-year-olds will need to be established by housing and children’s services authorities […] to facilitate the seamless discharge of duties and appropriate services to this client group.”

The nature of the obligation to establish such a framework of joint assessment between what may be two quite separate authorities was emphasised as being necessary by Baroness Hale in the Hounslow case.

The local authority here does not claim that a protocol is not required, but says that there is no basis for a declaration at this stage because they are actively working on it. The riposte to that, which is something which one may have sympathy with, is that, within the context of the case itself, Mr Lock, the claimant’s solicitor, pointed out in early correspondence in September of last year -- 13 months or more ago -- the reason to have a protocol that would prevent people falling into the gap that may possibly have affected these young people; and, although there was some delay in the local authority acknowledging they have not got a protocol, that still has not happened, and there may be other people who are in the position of these two people and no protocol to protect them from falling between two separate statutory schemes. I have sympathy with that and in the acknowledgment of service supported by Mr Lock in oral argument the local authority recognises its need to provide a protocol and is actively working on it, and there will be one in the near future which, I understand, will be weeks rather than months. If that is the position, even though, as is pointed out, the correspondence was over a year ago, and even though the Hammersmith case, which might have been said to point out the particular need to have such arrangements in place was in 2008, even so I cannot imagine that if the position was that the court was faced with the assertion that the local authority recognises its duty to establish a protocol and is actively putting one together the court would actually make a declaration of unlawfulness. In the light of the assurance that has been given, if a continued failure comes to light in the future, the position may be different.

Accordingly, I do not give permission to apply.