The claimant was made the subject of a child in need plan and, thereafter, repeatedly ran away or was excluded from her family home. When the claimant was aged 16 her mother referred her to the social services department of the defendant local authority. Following a meeting with a social worker the claimant was placed in temporary accommodation supplied through an unincorporated local government organisation (“the EYPP”) established by the defendant and other local housing authorities and staffed by local authority social workers. Young people accommodated through the EYPP entered into a separate agreement with the accommodation provider under which they paid rent from their income, which was almost invariably state benefits. The claimant was told explicitly that the accommodation so provided did not constitute accommodation under section 20 of the Children Act 1989. Thereafter, the claimant moved to different accommodation. By a claim for judicial review the claimant sought a declaration that: (i) she was an “eligible child” pursuant to paragraph 19B(2) of Schedule 2 to the 1989 Act or, alternatively, a “relevant child” under section 23A(2) of the 1989 Act, to whom the defendant owed statutory duties with which it had unlawfully failed to comply; and (ii) the EYPP could be used to accommodate children under section 20 of the 1989 Act and had been operating unlawfully in failing to do so. Prior to the hearing the claimant turned 18 with the result that, if she had been an eligible or relevant child, her status became that of a “former relevant child” pursuant to section 23C. While the defendant did not accept that the claimant was a “former relevant child” it formally agreed with her, and solemnly stated on the record to the court, that it would treat her exactly as if she had that status. The judge determined that the claim was therefore academic but that it was nonetheless in the public interest to hear it as it gave rise to a previously unaddressed point of statutory construction concerning the lawfulness of accommodating children of 16 or 17 years old though an arrangement such as that operated by the EYPP.
On the claim for judicial review—
Held, claim dismissed. (1) As was undisputed, a homeless child of 16 or 17 years old could agree with a local authority to be accommodated otherwise than under section 20 of the 1989 Act, or could enter section 20 accommodation but later opt out of it. However, given the strong financial motive on financially strained local authorities to save money wherever possible, there was a risk that the merits of the alternatives might be presented in such a partisan way as to ensure that the child repudiated the section 20 choice, creating the illusion of a choice which in fact was no choice at all. To avoid that outcome, for the purposes of reaching such an agreement the local authority had to present the alternatives neutrally and impartially, without applying spin or other undue pressure to solicit the non-section 20 choice by the child. Ideally, the way in which the alternatives were presented ought to be recorded in a clear memorandum written in plain child-friendly English which the child was given the chance to take away to read and consider before making a final decision. If the child’s final decision was in favour of non-section-20 accommodation, the child ought to sign and date the memorandum (paras 27, 28).
(2) Where, as might sometimes happen, there was insufficient time for a 16- or 17-year-old to be apprised in sufficient detail and depth of the necessary information for them to make a fair and free choice as to whether they wanted to go to section 20 or non-section 20 accommodation, they might need to be placed on an emergency basis in local authority accommodation before they had reached a decision. Any issues thereby arising could be resolved by a fair, purposive reading down of the legislation in such a way that allowed an emergency short-term placement in local authority accommodation, without necessarily forfeiting the opportunity for that child to agree with the local authority that they would be accommodated otherwise than under section 20. The legal effect of such a placement during that period of reflection ought to be seen as entirely neutral, so that the ability of the child to make a free and fair choice was maintained and not compromised (paras 31, 32).
(3) The defendant was entitled to stipulate that the accommodation provided by the EYPP was, for all its residents, otherwise than under section 20 provided that the claimant was given a meaningful alternative choice of section 20 accommodation elsewhere. Moreover the provider, as the owner or leaseholder of the accommodation, was entitled to stipulate that its young residents occupied its premises on a non-section-20 footing and paid their rent from benefits which they were lawfully entitled to claim. The claimant had been given the requisite choice and, where she had voluntarily accepted the accommodation in the knowledge that it was only available on a non-section-20 basis, and had applied for universal credit to fund the accommodation arrangements, she was to be taken to have agreed to being accommodated on a non-section 20 footing. It could not be said the authority at the material time operated an unlawful “policy” of coercing a large number of 16- and 17-year-old children into making agreements against section 20 accommodation, albeit sometimes the choices had not been presented as neutrally and impartially as they ought to have been (paras 51, 53, 56, 58, 59, 61, 64).
(4) The arrangements at the accommodation provided through the EYPP had not been provided “by the local authority” so as to make the claimant an “eligible child” or “relevant child” within the meaning of the 1989 Act. Nor, on the evidence, was the other accommodation to which the claimant had subsequently moved under her own steam. Accordingly, on the balance of probability, the claimant had been neither an eligible child or a relevant child at any material time up to her 18th birthday, although that made no practical difference to her given the agreement made by the defendant (paras 19, 65–69).
Tessa Buchanan (instructed by Coram Children’s Legal Centre) for the claimant.
Nicholas O’Brien (instructed by Essex Legal Services, Chelmsford) for the defendant.