Update: local government

In the last local government update (see Solicitors Journal, 153/12, 31 March 2009) the decisions in R (Breckland DC and others) v The Boundary Committee for England [2008] EWHC 2929 (Admin) and R (East Devon DC) v The Electoral Commission, Boundary Committee for England [2009] EWHC 4 (Admin) were discussed, together with the widespread dissatisfaction among local authorities with the manner in which the government was handling the move towards unitary authorities and, in particular, the confused and confusing consultation process undertaken by the Boundary Committee.

The Court of Appeal has now delivered judgment in R (Breckland DC) v The Boundary Committee; R (East Devon DC) v The Boundary Committee [2009] EWCA Civ 239 and echoed a number of the criticisms previously made by the High Court.

Challenging the Boundary Committee

Both Breckland DC and East Devon DC had challenged various aspects of the manner in which the Boundary Committee for England acted when providing advice to the Secretary of State concerning her proposal to abolish both authorities and establish unitary authorities in Norfolk and Devon.

The authorities issued separate applications for judicial review of the Boundary Committee. In Breckland, Cranson J held that:

(a) while the Boundary Committee was obliged to consult on the affordability of the proposed changes, it was entitled to do this as a separate consultation process;

(b) it had not yet consulted lawfully on this point and was unlikely to be able to do so before the deadline given by the Secretary of State for providing her with its advice;

(c) given that the Boundary Committee was considering abolishing an elected body, it was appropriate that the court exercise 'strict scrutiny' rather than merely Wednesbury review; and

(d) when consulting, there was no obligation to compare the merits of its proposal with the status quo.

Shortly after Breckland, Cranson J also heard the East Devon case. He adopted his reasoning from Breckland but, in response to additional arguments, also held that:

(a) while the Boundary Committee was obliged to consult the public as a whole, it was entitled to do so via the 'mediation' of 'opinion leaders' such as the local authorities which would be affected by its proposals; and

(b) it would be inappropriate to quash the Boundary Committee's implementation of the Secretary of State's request as nothing would be gained by further consultation.

In both cases, Cranson J declined to grant any substantive relief, but granted permission to appeal.

An inadequate consultation process

The Court of Appeal allowed the appeal in part. In order for any consultation process to be effective, it was necessary that the Boundary Committee publish more than just its proposals for the future of local government in an area. It had to also provide details of why the change was proposed and why the changes would meet the Secretary of State's criteria. In addition, while there was no rule that this consultation could not be carried out in stages, that did not absolve the committee of the need to ensure that sufficient detail was provided to enable meaningful responses to that consultation. In particular, it would be necessary for the final part of the consultation package to be considered as a whole, with sufficient time given to responses.

On the facts of the case, the Boundary Committee was wrong to suggest that it could consult on the affordability of the reforms after the end of the first consultation process. The financial implications of the proposals had been lost sight of or not understood and inadequate information had been put into the public domain.

Cranson J was wrong to suggest that 'mediation' by opinion makers was capable of turning an inadequate consultation process into an adequate consultation process. The Boundary Committee was obliged to consult itself; not to do so via the agency of other bodies.

Despite this, the Court of Appeal, like Cranson J, declined to grant any substantive belief. The process of consultation was not 'broken beyond repair'. There was no reason why the committee could not '“ with the benefit of the judgment '“ seek to make good any deficiencies before it submitted its final advice to the Secretary of State.

It is pleasing to see that the Court of Appeal rejected the idea that consultation could be carried out through 'opinion leaders'. As was noted in the previous update, this was very difficult to square with a meaningful duty to consult 'the public'. If only local authorities needed to be consulted then surely Parliament would have said so. The failure of the authorities to secure any substantive relief is also notable. The Court of Appeal was plainly mindful of the consequences '“ both in terms of public money and in terms of wasted time '“ in quashing the decision when it could still be saved. It expressly rejected an argument from Andrew Arden QC, on behalf of East Devon, that the unlawfulness identified would taint the whole process.

The distinction between s.17 and s.20

One of the 'hot topics' for local social services authorities in recent years has been the interaction between s.17 and s.20 of the Children Act 1989 and, in particular, whether a child requires accommodation under s.20 or merely help to find and sustain accommodation, which could be provided under s.17. The distinction was of significance because '“ in general terms '“ children accommodated under s.20 were likely to be eligible for support and assistance for many years after they turned 18 by virtue of the Children (Leaving Care) Act 2000.

The House of Lords has, in R (G) v London Borough of Southwark [2009] UKHL 26 (Solicitors Journal 153/20, 26 May 2009), attempted to put an end to this debate and determined that s.20 is the primary and specified duty and, if the requirements of s.20 are met, the local social services authority cannot seek to rely on s.17 instead.

G (referred to as 'A' throughout the judgment) had been born in Somalia in 1990 and had been granted indefinite leave to remain in 2005. He left school in 2006 and was excluded from his home by his mother in 2007. He was then 'sofa surfing', sleeping on friends' sofas or cars, until September 2007 when, with the assistance of solicitors, he secured accommodation from the London Borough of Southwark ('Southwark').

Southwark initially declined to accommodate him under s.20 but carried out an assessment under s.17; and concluded that his housing needs could be met by treating him simply as a homeless person under the provisions of Pt.7 of the Housing Act 1996. His solicitors pointed out that the assessment clearly justified the provision of accommodation under s.20, but Southwark maintained that they were merely providing 'help with accommodation' under s.17.

G sought judicial review of that decision, contending that, in fact and in law, he was being accommodated under s.20. His claim failed at first instance and was dismissed (by a majority) on appeal by the Court of Appeal. He further appealed to the House of Lords.

When the s.20 duty applies

Baroness Hale (with whom the other members of the Judicial Committee all agreed) gave the leading judgment. It was clear that s.17 was a general duty and that s.20 was the specific duty. In R (M) v Hammersmith and Fulham LBC [2008] UKHL 14, it had been decided when a child approached the housing authority for accommodation they should be referred to children's services for assessment under the Children Act 1989. The purpose of this assessment was not to facilitate a referral back the housing authority, but to determine whether or not the child falls within the scope of s.20. Once the s.20 duty arose, it could not be displaced by reliance on any other statutory power (R(H) v Wandsworth BC [2007] EWHC 1082 (Admin); R(D) v Southwark LBC [2007] EWCA Civ 182).

When determining whether or not the s.20 duty arose, the children's authority should ask itself the following (per R(A) v Croydon LBC [2008] EWCA Civ 1445):

(a) is the applicant a child?

(b) is the applicant a child in need?

(c) is he within the local authority's area?

(d) does he appear to the authority to require accommodation?

(e) is that need the result of:

(i) there being no person who has parental responsibility;

(ii) his being lost or abandoned;

(iii) the person caring for him being prevented from providing him with suitable accommodation or care;

(f) what are the child's wishes and feelings regarding the provision of accommodation?

(g) what consideration (given age and understanding) should be given those wishes and feelings?

On point (d), it was 'quite obvious' that G '“ or, indeed, any 'sofa surfing' child '“ required accommodation. While there was a distinction between needing 'accommodation' and needing 'help with accommodation', the latter was more apt to cove a situation where someone needed help with transport or decoration, rather than attempts by a children's authority to use some other statutory power to provide accommodation.

That was not to say that a children's authority could never seek the assistance of some other body or use some other power. Section 17 would be used, for example, where there was a need to accommodate the child with its parents. In addition, by s.27 of the Children Act 1989, a children's authority could request assistance from any local housing authority. However, that was not an invitation to 'pass the buck' '“ once the s.20 criteria were met, the duty arose and had to be discharged.

On the facts of the case, it was clear that all seven questions should be decided in G's favour. Hence, he had been accommodated under s.20 and his appeal would be allowed.

The House of Lords was surprised that the 'accommodation'/ 'help with accommodation' point should have required clarification, but this judgment has certainly helped to clarify this area of law. The next question will surely be about the application of s.20(6) of the Children Act 1989. If a child expresses a view that they would prefer independent accommodation and living under e.g. s.17 of the Children Act 1989, or via the duties owed to the homeless under Pt. 7 of the Housing Act 1996, will the children's authority accept that decision? Can they lawfully do so once they consider the s.20 duty to have arisen? Will we see 'gatekeeping' practices develop to try and persuade children to express a view under s.20(6) that they do not want s.20 accommodation? These questions will, no doubt, arise in future cases.