Local authority unlawfully failed to treat a 17 year-old homeless young person as a looked after child
Background
This judgment concerns a young person referred to by the High Court as BC. When BC was 9 years old, he suffered from a benign brain tumour which, after being removed, “allegedly left him with long-standing health problems, including left-sided weakness, fatigue, difficulties with executive functioning and memory, and anxiety and depression”. BC’s family lived in a caravan and experienced various difficulties, with children in the family coming to the attention of children’s social care on various occasions. When BC was 15, he was the subject of a child protection referral and, during that time, he was “noted to have special educational needs in respect of his social, emotional, and mental health”. There were also reports of BC being bullied and taking drugs. Less than three months later, the council completed its assessment, concluding that no ongoing support was needed. That same year, three more referrals were made concerning BC’s welfare; matters raised included possession of a knife and ongoing bullying. BC was then referred to the council’s “Early Help” service. Subsequently, reports were received that “BC was arguing with his mother, not enjoying life at home, and considering running away”, not attending school, using drugs and not engaging with support services.
From early 2018, when BC was 16, it was noted by children’s social care that the relationship between BC and his mother was breaking down and he was asked to leave the family home and not return. About a year later, an anonymous caller informed the council that BC and his siblings were being left at home alone and that drugs and alcohol were being used at the property. Another anonymous safeguarding referral was made several months later according to which BC was “living out of a van”, was “not being given food” and had “to beg for food.” Concerns about BC’s younger sibling were also raised. BC’s mother denied the allegations and, in early September 2018, the council “decided to close the referral (it appears without any investigation)”.
Less than two weeks later, on 13 September 2019, BC, who was 17 at the time, approached the local housing authority presenting as homeless, leading the housing officer to contact the council’s children’s services the same day “with an urgent referral for social services intervention”. By that point, BC had been away from home for three weeks (after being told to leave) and was staying with his friend’s mother, K. The housing officer made clear that BC had nowhere to stay that night, that his mother had “abdicated her responsibility for him”, that he owed money to a drug dealer and that there was “a history of children’s services involvement”.
As recalled by the High Court in its judgment:
“…BC was well known to [the council] with his “history of children’s services involvement”, and [the council] had already made considerable enquiries about his needs and welfare. His being prevented from residing at home was the culmination of the known progressive deterioration in his relationship with his parents. It was clearly the case that, in accordance with paragraph 3.4 of [the relevant statutory guidance], suitable emergency accommodation for BC under section 20 [of the Children Act 1989] was required, whilst his full needs, including his need for continuing accommodation and support, were further assessed. Despite this, [the council] inexplicably failed to provide BC with any accommodation and indeed failed to take any steps to assess his case at all until 18 September 2019, being 5 days later, which is highly regrettable”. (Paragraph 31; emphasis added)
On 18 September 2019, the local authority spoke to BC’s mother who said BC’s bedroom was now taken by one of his siblings, but another caravan was available for BC to stay in, though he’d be expected to pay to stay there. As recalled in the judgment, “the social worker did not probe any further about the apparent availability of the caravan and took no steps to ascertain if it was suitable, available accommodation”. The High Court later accepted that the caravan was dilapidated, was in a different area and would have to be refurbished to be habitable.
Despite taking no action until five days after BC presented as homeless and despite making only two telephone calls, the only recommendation made by the council’s social worker was to refer BC to ‘Targeted Youth Support’ for assistance with education and drug use. No action was taken to address BC’s homelessness and lack of parental care. The council proposed to “work with him and the family to look at reintegration into the family home”.
In his witness statements to the High Court, BC said:
“Throughout this period I continued staying with [K] and his mum. I felt that I was outstaying my welcome and was very nervous because of this. Things got really bad for me in this period. [K] was a member of the gang that I used to be affiliated with. At the time I was sofa surfing at his home, I had no choice but to go out with him all the time, and to also take part in gang affiliated activities. There was no option for me to stay at [K’s] house when he was not there, and if I told him I didn’t want to go out then he would threaten to hurt me. I had no choice but to go.”
“Social services knew that my staying with K and his mum was really a temporary thing and that the reason I was referred to social services … was because K’s mum said I couldn’t really stay any longer. […], K’s mother was just providing accommodation for me because I had nowhere else to go. She didn’t agree for me to stay there long term. … it was really difficult living at K’s house because I felt bad using his shower and kitchen. I couldn’t shower and bathe because I felt it was disrespectful to do this and to sleep there. I felt like they would think I was taking advantage of them and ask me to leave. I was on edge all the time. This meant that I wasn’t washing myself very often at their house. I never felt clean and I would wear the same clothes every day. That’s also why I kept going back to my parents’ or my sisters’ to shower or get clean clothes, but that just made things worse with our relationship.”
On 16 October 2019, still aged 17, BC was admitted to hospital under section 136 of the Mental Health Act 1983 (where police take action to protect a person) after he had threatened to kill himself. On admission to hospital, it was recorded that BC was “starving hungry” and “appeared unkept”. When BC was asked what led him to feeling suicidal, he said “just life, not having a job, no money and nowhere to live”. BC’s social worker then contacted K’s mother to ask if BC could return to her home as BC’s mother was still not prepared to have him back home. The local authority decided to register BC for social housing and refer him for drugs support. Five days later, the police contacted the council after BC had “engaged in anti-social behaviour with a group of youths” and had told the police he was “currently sofa surfing”.
Despite this, in late October 2019, the council closed BC’s case noting that he was living with a friend, and had been referred for support and signposted to the housing authority.
Around the time of BC’s 18th birthday, he was asked by K’s mother to leave her home. Having nowhere to go, BC went to London where he slept rough before staying with his sister for a few months, later returning to the streets. During this period, BC misused alcohol, self-harmed and attempted suicide. As noted by the High Court, “this sad outcome was a predictable consequence of [the local authority] closing [BC’s] case”.
The issues before the High Court
The High Court had before it five questions:
- Did the local authority owe BC a duty under section 20 of the Children Act 1989 to provide him with accommodation?
- Were the arrangements made by the council, i.e., for BC to stay with his friend’s mother, made pursuant to section of the Children Act 1989?
- Does the council owe BC leaving care duties?
- Should the council have [subsequently] exercised its discretion to treat BC as a care leaver? This question would only apply if the Court answered ‘no’ to questions 2 and 3.
- Should the Court refuse permission for the judicial review because of a delay in bringing the claim?
The legal framework
Statutory duties towards children in need who require accommodation
Section 20(1) of the Children Act 1989 places a duty on local authorities to provide accommodation for any child in need (defined in section 17(10) of the 1989 Act) who appears to require accommodation as a result of:
(a) there being no person who has parental responsibility for them;
(b) the child being lost or having been abandoned; or
(c) the person who has been caring for them being prevented (whether or not permanently, and for whatever reason) from providing them with suitable accommodation or care.
Section 20(6) requires local authorities, before providing accommodation under section 20 and so far as is reasonably practicable and consistent with the child’s welfare, to ascertain the child’s wishes and feelings regarding the provision of accommodation and give them due consideration (having regard to his age and understanding).
In 2009, the landmark House of Lords judgment - R (G) v Southwark LBC - confirmed the primacy of the specific duty to accommodate / ‘look after’ a child under section 20 over the general duty to support a child in need under section 17. In Southwark, a series of questions were identified to determine if the section 20 duty arises:
- Is the person a child?
- Is the person a child in need? (as defined in section 17 of the Children Act 1989)
- Is the child within the local authority’s area?
- Does the child appear to require accommodation?
- Is the need for accommodation the result of:
(a) there being no person who has parental responsibility for the child;
(b) the child being lost or abandoned; or
(c) the person who has been caring for the child being prevented from providing them with suitable accommodation or care.
- What are the child’s wishes and feelings regarding the provision of accommodation? (See section 20(6) of the Children Act 1989)
- What consideration (having regard to his age and understanding) should be given to those wishes and feelings?
If the criteria under section 20 are met then the duty is immediate and unqualified - the local authority must accommodate the child. It cannot resist the duty due to a lack of resources (R (JL) v Islington LBC [2009] EWHC 458 (Admin)) OR because it considers that provision can or should be made under some other power (G v Southwark) OR because some other authority or body, such as a housing authority, can provide accommodation under a different legislative scheme (e.g., the Housing Act 1996) (R (M) v Hammersmith and Fulham [2008] UKHL 14). (See paragraph 10 here/BC judgment).
Once a child is provided with accommodation for more than 24 hours, they become looked after (section 22(1)-(2) of the Children Act 1989) and the local authority is under a duty to safeguard and promote their welfare (section 22(3)(a) of the 1989 Act) and to meet all of the specific duties set out in the 1989 Act and The Care Planning, Placement and Case Review (England) Regulations 2010.
Emergency accommodation for children aged 16 and 17 who are homeless
Statutory guidance - Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation – which local authorities must follow unless there are exceptional reasons not to (see para 1.6), expressly and consistently states:
Para 3.4: Where a 16 or 17 year old seeks help or is referred, and it appears that they have nowhere safe to stay that night, then children’s services must secure suitable emergency accommodation for them under section 20 of the 1989 Act, whilst their needs, including their need for continuing accommodation and support, are further assessed. If the young person is accommodated for a continuous period of more than 24 hours the young person will become looked after...
Para 3.23: The most crucial issues to be determined in the first instance will be whether the young person is actually homeless, if the young person is a child in need (section 17) and/or is suffering, or likely to suffer, significant harm (section 47), and/or if the young person requires emergency accommodation. If this is the case, children’s services must accommodate them immediately. The welfare of the child is paramount and a 16 or 17 year old must not be placed at risk whilst waiting for the completion of an assessment.
Qualifying young person / qualifying care leaver
This ‘category’ of care leavers is defined in section 24(1B) of the Children Act 1989 as a person who:
(a) is under twenty-one; and
(b) at any time after reaching the age of sixteen but while still a child was, but is no longer, looked after, accommodated or fostered.
This ‘category’ also includes those young people who are aged 16-21 with respect to whom a special guardianship order is in force (or was in force before they turned 18), and who were looked after by a local authority immediately before the making of that order (see section 24(1A)).
Under section 24A and 24B of the Children Act 1989, ‘qualifying care leavers’ are entitled to have their needs assessed and to receive advice, assistance and support. Assistance relating to employment, education or training may extend to the age of 25. They are also entitled to make representations (including complaints) about the discharge of local authority functions (section 24D) and they have the right to independent advocacy support (section 26A).
The High Court’s decision
The High Court considered each of the questions in turn.
1. Did the local authority owe BC a duty under section 20 of the Children Act 1989 to provide him with accommodation?
There was agreement that BC was a child and that he was in the council’s area during the period in question. While the council disputed BC being a child in need, the High Court concluded that he was “plainly a child in need by 18 September 2019 at the latest” (i.e., when the council held a meeting after he presented as homeless).
Reflecting on BC’s living arrangements, the High Court stated:
“Whether [BC] slept on the sofa or shared a bedroom with K is unimportant; on any view that unstable accommodation was not suitable for a 17 year old child. It was unsuitable in nature, as BC did not shower there; he had to wear the same clothes day after day or occasionally go and get a change of clothes from his mother’s caravan …, and he had to try to snatch a shower at home. It was in any event precarious, being uncertain in duration: from time to time BC had to find somewhere else to stay overnight …, and K’s mother could not have him stay with her unless she obtained financial help which was not forthcoming. BC himself had no money and no financial support. All of this was known to [the council] by 18 September when it made its assessment”. (Paragraph 66; emphasis added)
Addressing the question of whether BC was without suitable accommodation (as per the Southwark checklist), the High Court concluded that, despite the local authority’s assertions to the contrary, the caravan which, at one point, was suggested as available for BC to live in was “obviously not suitable accommodation” and it wasn’t even inspected by the council to assess its suitability. The High Court also commented on the quality of BC’s accommodation while he was staying with his friend’s mother:
“…the suggestion that the accommodation offered by K’s mother was suitable for BC is unsustainable by reason of its nature and precarious duration. Indeed, its duration was uncertain from day to day. Again, [the council] took no steps to visit K’s mother’s house and assess the suitability of that accommodation either… [The council] could not reasonably have concluded …that K’s mother’s house was suitable accommodation for BC”. (Paragraph 70; emphasis added)
“BC was clearly a child in need by 18 September 2019. He was without suitable accommodation. On any view, his health or development was likely to be significantly impaired, or further impaired, without the provision for him of accommodation by [the council]”.(Paragraph 72; emphasis added)
Moving to the question of whether BC’s mother was prevented from providing him with suitable accommodation (and therefore falling within section 20(1)(c) of the Children Act 1989), the High Court recalled domestic case law ([2003] UKHL 57) which requires the widest possible scope to be given to this requirement:
“The precise cause or causes of BC being excluded from his home do not matter. It may well be that blame could be attributed to all parties. But on any view, BC’s parents were plainly prevented, whether or not permanently and for whatever reason, from providing him with suitable accommodation or care and in my judgment no local authority could reasonably have concluded otherwise…”. (Paragraph 75;emphasis added)
The High Court rejected the council’s argument that BC wanted to live with K’s mother and concluded that BC had “expressed a clear wish to be accommodated by [the council]”.
2. Were the arrangements made by the council, i.e., for BC to stay with his friend’s mother, made pursuant to section of the Children Act 1989?
The High Court concluded that the arrangements made by the local authority (i.e., for BC to stay with K’s mother pending his return home) were made pursuant to section 20 of the Children Act 1989, i.e., as part of the council’s obligations under the Act, but only from 17 October – the date when BC’s mother confirmed to the council he could not return home and when his social worker took him back to K’s mother’s house. BC’s lawyer argued it was sooner that than that, but the Court rejected this. The High Court relied on existing law which requires a local authority to play a clear role in arranging accommodation for the child:
“Whilst there is no requirement that the local authority must provide the accommodation itself, a local authority must be shown to have facilitated the arrangements or “played a role” for the child to be accommodated”. (Paragraph 80; emphasis added – citing from Southwark LBC v D [2007] EWCA Civ 182)
Evidence that the local authority played a central or significant role in making sure BC had accommodation at K’s mother’s house was drawn from records documenting contact between the council and BC’s mother and K’s mother, and various notes showing that, for instance, the council referred to BC as being homeless.
3. Does the council owe BC leaving care duties?
Yes. As BC spent 11 weeks as an accommodated child (in K’s mother’s house), he acquired ‘qualifying young person’ status under section 24 of the Children Act 1989. (Had BC accrued at least another 2 weeks as an accommodated child, he would now be entitled to all care leaver entitlements up to the age of 25).
4. Should the council have exercised its discretion to treat BC as a care leaver? – This question would only apply if the Court answered ‘no’ to questions 2 and 3.
This question became not applicable after the High Court ‘answered’ the first three questions with a ‘yes’.
5. Should the Court refuse permission for this judicial review because of a delay in bringing the claim?
The council submitted that BC’s judicial review claim was “manifestly” late – it should have been made by the end of 2019 (within three months of the local authority’s refusal to accommodate BC) but was instead made in August 2022. The High Court disagreed and, drawing on domestic case law, concluded that the council’s unlawful failure to treat BC as a looked after child was a “continuing breach of its obligations under section 20” in that the council still had ongoing legal duties towards BC as a qualifying young person.
Furthermore, BC’s lawyer argued that BC was not aware of his rights when the failings took place. The High Court agreed and cited existing case law:
“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”. (Para 73 of [2006] EWCA Civ 917)
Additionally, the High Court accepted BC’s explanation as to why he was unable to seek legal advice until 2021, i.e., he did not know that council had acted unlawfully or that he could challenge the way he had been treated and was “trying to survive”. It wasn’t until July 2021 that BC’s psychologist referred him for independent legal advice. Even after BC’s solicitors became involved, the council refused to provide the requested documentation, insisting that BC should make a subject access request under the Data Protection Act 2018.
In summary, BC’s claim was successful, and the High Court made the following declarations:
- By 18 September 2019, the local authority owed BC a duty under section 20 of the Children Act 1989 to provide him with accommodation.
- The arrangements made by the council for BC to stay with his friend’s mother were arrangements made pursuant to section 20 of the Children Act 1989.
- BC has therefore acquired the status of “a person qualifying for advice and assistance” under section 24 of the Children Act 1989.
This claim focused on determining at which date the local authority became responsible for the young person pursuant to section 20 of the Children Act 1989 and which (if any) leaving care statutory duties consequently applied. No relief (remedy) was sought in connection with the local authority's failure/s to act in accordance with section 20 earlier. Advocates play a vital role in informing children and young people about their right to seek and access independent legal advice to help them make informed decisions about pursuing justice, including relief, through the courts (e.g., judicial review, negligence claim, Human Rights Act 1998 claim).
You can read the full judgment here: BC, R (On the Application Of) v Surrey County Council [2023] EWHC 3209 (Admin) (15 December 2023)
Learn more:
- Article 39 law map: Supporting homeless children aged 16 and 17
- Summary of the landmark Southwark judgment
- For information about different ‘categories of care leavers’ and the corresponding leaving care entitlements, please see information from our advocacy clinic on care leaver’s rights and the ‘leaving care page on rights4children.