M, R (on the application of) v London Borough of Hammersmith and Fulham

Factual and Procedural Background

The Appellant is a young person who, shortly before her seventeenth birthday, became estranged from her mother. After being excluded from school and becoming involved in criminal proceedings, she twice approached the housing department of the Defendant Local Authority seeking accommodation. On 6 April 2005 the housing department provided bed-and-breakfast accommodation under a licence agreement and continued to place her in temporary lodgings thereafter.

No referral was ever made to the Authority’s children’s services department, despite statutory guidance recommending joint assessment of homeless 16- and 17-year-olds. In 2006, while the Appellant was serving a custodial sentence, judicial-review proceedings were issued contending that she should have been treated as a “looked-after” child under the Children Act 1989 and, as a consequence, entitled to the enhanced support regime for former relevant children. The High Court refused permission, but the Court of Appeal granted permission and ultimately dismissed the substantive claim. The Appellant then obtained leave to appeal to the House of Lords, which delivered the present opinion.

Legal Issues Presented

1. Whether accommodation provided by a housing department under section 188 of the Housing Act 1996 can, in the circumstances of this case, be re-characterised as accommodation provided under section 20 of the Children Act 1989 so as to render the Appellant a “looked-after” child.
2. Whether, upon satisfying the criteria in section 20, a Local Authority can avoid the consequential Children Act duties by “labelling” the placement as housing-act accommodation.
3. The proper construction of “a child who is looked after by a local authority” in section 22(1) of the Children Act 1989 when no action has been taken by children’s services.

Arguments of the Parties

Appellant's Arguments

• Once the Authority knew, or ought to have known, that the Appellant met the criteria in section 20(1)(c) (parent prevented from providing suitable accommodation or care), the accommodation must be treated as having been provided under that provision, irrespective of the label used.
• The Authority could not lawfully rely on section 188 of the Housing Act 1996 to sidestep the more onerous Children Act obligations, as confirmed by recent authorities involving similar factual matrices.
• Accordingly, the Appellant should be deemed to have been an eligible, and hence a former relevant, child entitled to continuing support beyond her eighteenth birthday.

Respondent Local Authority's Arguments

• The housing department properly discharged its interim duty under section 188 once it had “reason to believe” the Appellant might be homeless and in priority need; that duty is deliberately broad and precedes any Children Act assessment.
• No decision by children’s services to accommodate was ever taken; without such a decision the statutory definition of “looked-after” in section 22(1) is not satisfied.
• The factual situation did not compel a conclusion that the mother was “prevented” from providing suitable accommodation in the sense required by section 20(1)(c).

Table of Precedents Cited

Court's Reasoning and Analysis

The House emphasised the low threshold in section 188 of the Housing Act 1996: once a housing authority has “reason to believe” an applicant may be homeless and in priority need, it must provide interim accommodation and then undertake inquiries. This statutory duty exists independently of, and prior to, any assessment under section 20 of the Children Act 1989.

The core statutory definition in section 22(1) requires that a child be “provided with accommodation by the authority in the exercise of … social services functions.” Because no action whatsoever was taken by the children’s services department, the Appellant could not be brought within that definition merely by reference to what the department ought to have done. The court declined to extend the wording of the statute to encompass circumstances where children’s services were never involved.

While acknowledging that established guidance mandates referral and joint assessment between housing and children’s services, the failure to follow guidance does not retroactively convert accommodation provided under section 188 into section 20 accommodation. The House distinguished the authorities relied on by the Appellant, noting that each concerned cases where children’s services had in fact arranged or facilitated accommodation.

Baroness Hale criticised the lack of a joint protocol and confirmed that, on the facts, the Appellant should have been referred to children’s services but was not. Nonetheless, statutory construction could not override that factual reality. Consequently, the court held that the Appellant was never a “looked-after” child and therefore did not qualify for the leaving-care regime.

Holding and Implications

Appeal DISMISSED.

The decision affirms that accommodation arranged solely by a housing department under section 188 of the Housing Act 1996 does not, without more, trigger the “looked-after” status under section 22(1) of the Children Act 1989. Local authorities remain strongly admonished to implement joint protocols and referral mechanisms to avoid young people falling between departmental responsibilities, but a failure to do so will not of itself expand the statutory definition of “looked-after.” The ruling clarifies departmental boundaries while leaving intact the broader policy expectation of inter-agency cooperation.