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Liverpool City Council, R (on the application of) v London Borough of Hillingdon & Anor
Factual and Procedural Background
The case concerns a dispute between two local authorities, the London Borough of Hillingdon ("LBH") and Liverpool City Council ("Liverpool"), regarding which authority bore the statutory duty under section 20(1) of the Children Act 1989 ("the CA") to provide accommodation for AK, an individual whose age and status as a child were contested. AK, a national of Pakistan, arrived illegally in the United Kingdom and claimed asylum in Liverpool. Liverpool initially assessed AK as an adult and referred him to immigration authorities. AK was accommodated by the National Asylum Support Service ("NASS") in Liverpool before being detained in adult detention centres, including one within LBH's area. AK maintained he was a child, supported by a medical report accepted by an immigration judge, leading to a need for re-assessment of his age.
A dispute arose between LBH and Liverpool about which authority was responsible for conducting this re-assessment and providing accommodation. LBH contended Liverpool was responsible, while Liverpool denied duties under the CA. LBH accommodated AK under section 17 but did not conduct the required age re-assessment, instead assisting AK to return to Liverpool, where he was then accommodated on the basis that he was an adult. Liverpool maintained it had no CA responsibilities and no further age assessment was conducted.
To resolve the impasse, Liverpool initiated judicial review proceedings seeking declarations and mandatory orders against LBH to conduct an age assessment and provide accommodation under section 20 of the CA pending such assessment.
Legal Issues Presented
- Did LBH discharge its duty under section 20(1) of the Children Act 1989 to provide accommodation for AK?
- Can more than one local authority concurrently owe a duty under section 20(1) in respect of the same child?
- Whether, if LBH had a continuing duty under section 20, Liverpool could also be under that duty or if the duty is exclusive to one authority at a time.
Arguments of the Parties
Appellant's Arguments
- LBH argued that it had discharged its section 20 duty by ascertaining AK's wishes and assisting his return to Liverpool, where Liverpool then assumed responsibility.
- LBH contended that Liverpool accepted responsibility for re-assessing AK's age and providing accommodation.
- LBH maintained it had no obligation to conduct a re-assessment or provide accommodation under section 20, as Liverpool was the responsible authority.
Respondent's Arguments
- Liverpool contended that LBH had a continuing duty to assess AK and provide accommodation under section 20, and that Liverpool had no duty under the CA.
- Liverpool sought declarations and mandatory orders requiring LBH to perform the age assessment and accommodation duties.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (H, Barhanu, B) v. LBs Wandsworth, Hackney, Islington [2007] EWHC 1082 (Admin) | Section 20(6) operates as a prior step before providing accommodation, focusing on the form and manner of provision, including considering the child's wishes. | Used to clarify that section 20(6) is about how accommodation is provided, not whether the duty under section 20(1) arises. |
| R (S) v. LB Sutton [2007] EWHC 1196 (Admin) | Section 20(6) relates to the type of accommodation provided, not to the existence of the duty to provide accommodation. | Supported the view that the child's wishes are considered after the duty under section 20(1) arises. |
| R (S) v. LB Sutton [2007] EWCA Civ 790 | Clarified that the child's wishes are part of the assessment preceding accommodation decisions but do not displace the duty itself. | Confirmed the non-decisive but important role of the child's wishes in accommodation decisions. |
| R (M) v. LB Hammersmith and Fulham [2008] UKHL 14 | The child's wishes under section 20(6) are given a voice but are not decisive in determining the duty to provide accommodation. | Supported a nuanced approach to considering the child's wishes alongside welfare needs. |
| R (M, A) v. LBs Lambeth, Croydon [2008] EWHC 1364 (Admin) | Section 20(6) and (7) are integral to understanding the character of the duty under section 20(1), including when accommodation should not be provided. | Emphasized the practical considerations in assessing the duty and the child's acceptance of accommodation. |
| The Queen on the application of A and London Borough of Croydon and others [2008] EWCA Civ 1445 | Detailed the factors local authorities must consider under section 20, including the child's status, needs, area, and wishes. | Provided the most recent authoritative statement on the scope and application of section 20 duties. |
| Regina v. Northavon District Council, ex parte Smith [1994] 2 AC 402 | Judicial review is not the appropriate mechanism to enforce cooperation between local authorities; they must cooperate to discharge duties. | Used to caution against expecting courts to resolve inter-authority disputes beyond statutory mechanisms. |
Court's Reasoning and Analysis
The court analysed the statutory framework of section 20 of the Children Act 1989, which imposes a duty on local authorities to provide accommodation for children in need within their area. The court noted that section 20(6) requires authorities to ascertain and give due consideration to the child's wishes and feelings, but these are not determinative of the duty itself.
The court found that LBH did not discharge its section 20 duty because it did not conduct an age re-assessment to determine whether AK was a child, nor did it assess his welfare needs. Instead, LBH consistently maintained it had no responsibility under section 20 and merely assisted AK in returning to Liverpool based solely on his expressed wishes, without proper assessment or consideration of his welfare. This approach was deemed a failure to perform the statutory duty rather than a defective performance.
The court reviewed relevant case law, concluding that the child's wishes must be considered as part of an overall welfare assessment, not as a shortcut to discharging the duty. It emphasized that a local authority must assess the child's needs and the suitability of accommodation before deciding whether to provide it in accordance with the child's wishes.
Regarding concurrent duties, the court accepted a concession that if LBH had not discharged its duty, Liverpool would not have a concurrent duty under section 20. However, one judge expressed caution about the exclusivity of the duty, suggesting that in some circumstances concurrent duties might arise, though this was not determinative in this case.
The court expressed concern about the unresolved factual and procedural issues, particularly the absence of a reliable age assessment, which hindered the proper application of the Children Act to assist AK.
Holding and Implications
The court’s final decision was to UPHOLD THE APPEAL on the ground that LBH did not discharge its duty under section 20 of the Children Act 1989.
The court granted declarations and a mandatory order requiring LBH to conduct an age assessment of AK and provide accommodation pending that assessment. If LBH concludes that AK is a child, it must decide on suitable accommodation consistent with its statutory obligations and may provide accommodation in Liverpool with Liverpool’s cooperation.
The decision clarifies that a local authority’s duty under section 20 cannot be discharged merely by ascertaining a child’s wishes without a proper assessment of welfare needs and age. It highlights the importance of statutory compliance and inter-authority cooperation but does not establish new precedent on concurrent duties, leaving open questions for future cases. The ruling directly affects the responsibilities of the two local authorities in this case but does not resolve broader policy or statutory interpretation beyond the facts presented.
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