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S20 and the Duty to Accommodate...When is enough, enough?

The case of R (on the application of A) v Haringey LBC considers whether the Local Authority (in this case, the London Borough of Haringey) had carried out its duty under Section 20 of the Children Act 1989 to provide accommodation to a 17-year-old boy who repeatedly refused to be placed.

I am sure many Local Authorities would agree that this situation is fairly commonplace amongst adolescents, many of whom regularly abscond from their Local Authority placements and sometimes refuse to be placed at all, and this is often an ongoing issue for many Social Services Departments. The above case of R v Haringey however provides some clarity on the legal position where Local Authorities are faced with such circumstances.

R v Haringey concerned a child 'A' who had a long history of offending and violent behaviour, which commenced at around the age of 12. In 2014 A was subsequently taken into Local Authority care and was moved to various residential placements, with each placement failing due to A's frequent offending behaviour. A was provided with a high level of support by the Local Authority however, A refused to engage in order to utilise such support. An out of area placement was later found for A in Nottingham due to A having exhausted all available placements in the London area. It was also hoped that moving A to Nottingham would help to remove him from the identified risk of gang affiliation if the Claimant stayed in London. A however, refused to engage with the move to Nottingham and instead became homeless.

In July 2016, the Local Authority applied for Wardship. At the Wardship hearing, the Court ruled that the Local Authority had done all that was reasonably practicable to provide accommodation for A. The Claimant however submitted that he remained a Child in Need and that his refusal to move to a placement in Nottingham did not mean that the London Borough of Haringey had discharged its duty to accommodate him in accordance with S20 CA 1989.

The Court ruled that the Local Authority had carried out its statutory duty to the best of its ability. The duty to accommodate is not an absolute duty as it requires the presence and co-operation of the child and/or minor. The case of R v Kensington and Chelsea Royal London Borough Council 1999 stated that the LA's duty could be discharged where there was frequent and unequivocal refusal. The Court held that s20 and s22C of the Children Act applied.

Section 22 of the CA 1989 applies to any child who is looked after by a Local Authority and is in the LA's care and/or is provided with accommodation by the authority in the exercise of its Social Services functions. In accordance with Section 22, before making any decision with respect to a child whom the Local Authority are looking after, or proposing to look after, a Local Authority must, as far as is reasonably practicable, ascertain the wishes and feelings of the child and/or his parent/guardian. The child's age and understanding should also be taken into consideration. The Court found that the Local Authority had followed the correct procedure under s22C, stating that A's rights and feelings were known, documented and given due consideration and in accordance with S22C, an appropriate out of area placement was found for A. Therefore, the Local Authority had done all that could reasonably be expected of them to provide suitable accommodation for A. The Claimant was deemed competent to make decisions and the steps the London Borough of Haringey wished to take to accommodate him required his co-operation.

Due to the reasons set out above, the Judge found that the 17-year-old Claimant's claim for judicial review following on from the Local Authority's decision not to provide him with further accommodation and support must fail.

Forbes Comment

R v Haringey LBC is a useful case to keep in mind when LA's are faced with similar situations whereby 16 and 17-year-olds are refusing to accept suitable s20 accommodation provided by the Local Authority. This case makes it clear that it will not necessarily be held unlawful for a Local Authority to make the decision not to provide a young person with further accommodation and support, should they continually and unequivocally refuse such suitable placements.

It should be borne in mind that if a child/young person frequently absconds or refuses to take up accommodation, provision is still being made. The actions of the child/young person will not turn the performance of the LA's duty into non-performance of the duty to accommodate a Child in Need in accordance with s20 CA 1989.

Nevertheless, a lack of co-operation by the child/young person is no reason for the LA not to attempt to carry out its duties in accordance with the CA 1989. In these circumstances, the LA should ensure they carefully record how they have attempted to engage the young person in order to assess their needs and provide them with appropriate services. Ultimately however, it is not possible to force such services on young people who continually refuse to accept them.

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