What is a Local Authority’s duty towards homeless 16 and 17 year olds?
By: Vicky Allen
Tags: Housing Online, Mental Health, Housing And Family Online, Homelessness

What is a Local Authority’s duty towards homeless 16 and 17 year olds?

A long form article exploring the parallel duties of both a housing authority and children’s social care owed to homeless 16 and 17 year olds, and what this means in practice for advisers. Vicky Allen Follow Oct 17, 2019 · 11 min read

16 and 17 years olds represent a highly vulnerable group of young people, on the cusp of adulthood, but still rightfully recognised in law as children. Over 2,300 16 and 17 year olds have approached the Citizens Advice local network over the last 18 months with housing and welfare benefit questions. It’s important therefore that advisers understand the housing options available to homeless children who are 16 or 17 years old.

If you’re advising a 16 or 17 year old you should think about whether there are any safeguarding issues. Safeguarding is the action that is taken to promote the welfare of children and protect them from harm. Make sure you’re familiar with your local policy and get help from a manager if you’re not sure.

The support available to homeless young people will depend on whether or not they’re considered to be a “Child in Need” in line with the Children Act 1989. If so they should be accommodated and supported as a ‘child looked after’. If a homeless young person is not considered to be a Child in Need they would be eligible for support with accommodation only. This article explores the different duties for children in need as opposed to children considered to have a need for accommodation only. We also look at why in most cases homeless young people should be advised to pursue support via children’s social care rather than the housing department.

The Relevant Legislation

The Children Act 1989 sets out when a young person should be considered a “child in need” s17(10) states:

(10) For the purposes of this Part a child shall be taken to be in need if —

(a)he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b)his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c ) he is disabled

s20(1) sets out when the children’s social care department is responsible for accommodating young people:

Provision of accommodation for children: general.

(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of —

(a)there being no person who has parental responsibility for him;

(b)his being lost or having been abandoned; or

(c )the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

….

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

You can find more information about the overall duties Children’s Social Care have towards children in need on AdviserNet pages 8.30.62.3

If a young person is accommodated by Children’s Social Care they will be considered to be a child “Looked After” and are eligible for the same support available to all other children looked after. This includes support with education, training and employment and financial support. If a young person is looked after for a certain period of time they will also be eligible for support up to age 25 as a care leaver. This support will include access to a Personal Advisor and a Pathway Plan. You can find more information about this on AdviserNet pages 8.30.62.20.

The Housing Act 1996 as amended by Homeless Reduction Act 2017 outlines the duties on Housing Authorities in relation to homelessness. s188 Housing Act 1996 states:

188 Interim duty to accommodate in case of apparent priority need.

(1)If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they must secure that accommodation is available for the applicant’s occupation.

You can find more information on making a homeless application on AdviserNet.

Case Law

R (on the application of G) v Southwark London Borough Council — [2009] 3 All ER 189

In May 2009 the House of Lords decided the case of R (G) v London Borough of Southwark. This was a landmark judgement that provided clarity on the responsibilities for not just local authority housing departments but also children’s social care departments.

The case outlines what both departments must consider when a young person approaches either department for homelessness assistance as well as what policies and processes should be in place in preparation for any such approach. The main points are:

Every local authority should have a joint protocol in place between the housing and children’s social care department to outline how they support homeless young people.

The primary duty to homeless 16 and 17 year olds lies with children’s social care in line with s.20 Children Act 1989

children’s social care departments cannot fulfil their duties to homeless 16 and 17 year olds by supporting them to make a homeless application to the housing department.

16 and 17 year olds who approach a local authority housing department as homeless should be accommodated in line with their interim duties under s188 (1) Part 7 Housing Act 1996 (as amended). A formal referral to Children’s Social Care should then be made in order for an assessment of the young person’s needs to be undertaken.[1]

The young person should be supported to make an informed choice about which route of support they want to pursue. The young person’s wishes and feelings should always be considered as part of any decision made in respect of their accommodation.

More recently Essex County Council were challenged over the way they handle homeless applications from 16 and 17 year olds. You can read more about that case in The Expert Advice Team’s October monthly newsletter.

You can read more about using case law to support your clients’ cases in Amy Hughes’ article on Adviser Online.

How should it work in practice

If a young person under 18 is homeless the primary duty to accommodate and support the young person lies with the children’s social care department rather than the housing department. Nevertheless, when a young person is homeless in an emergency, and requires accommodation the same day, local policy may mean that the housing department will provide emergency accommodation while children’s social care carry out an assessment to determine if the young person is in need. This would be lawful as long as accommodation provided by The Housing Department was considered suitable (B&B and nightly rate accommodation is never considered suitable for 16 and 17 year olds). You can find more information on suitability of accommodation following a homeless application on AdviserNet.

Children’s social care will need to complete a needs assessment within 45 days of the young person becoming known to them by either an approach directly from the young person or a referral from another agency (including the housing department). The needs assessment should cover all aspects of the young person’s needs. This should include;

rebuilding and supporting relationships with their family

housing

income and financial stability

physical health, mental health and emotional wellbeing

safety

education, training and employment

The young person’s wishes and feelings should be considered at all times.

If a young person has approached the housing department and made a homeless application they should also carry out their enquiries to determine if a housing duty is owed. In practice they can make a “not homeless” decision following the young person being accommodated by children’s social care.

Both the housing and children’s social care departments should work on the assumption that in most cases, young people are better off remaining in the family home. Nevertheless, this assumption should not cloud their judgement when deciding if a child is “in need”. The result of their assessment may mean that the long term aim is to support a young person to return to the family home if it is safe to do so. However, the young person will have to agree to this plan.

Young people should always be referred for support so that they can make an informed choice when they have the option of accepting accommodation via homelessness duties or becoming a child looked after. This can be offered by an independent adviser or an advocate. An advocate or adviser should explain the difference in the levels of support and aftercare for each option.

A referral for an advocate is usually made by the local authority — many have contracts with Coram’s Advocacy Service or National Youth Advocacy Service (NYAS). However, as an adviser you can also make a referral for the young person to be allocated an advocate. There are many different agencies offering advocacy services and you should be able to find an organisation offering this service in your area by doing a simple search or by contacting Coram or NYAS who offer national services.

Young people should be encouraged not to make a decision on which route to follow until they are aware of all the options and implications of both routes.

Becoming a child looked after vs being accommodated following a homeless application

Tactics for Advisors

Although the legislation and case law is clear young people can still face problems when asking for help around housing and homelessness. Some of the common issues young people face include gatekeeping and being “pushed from pillar to post” when requesting help. (This is explored further on in challenging decisions).

Given the different levels of support available, in the majority of cases it will be in the client’s best interests to follow the children’s social care route to accommodation rather than completing a homeless application. The client can choose to decide to be accommodated via the homelessness route but this is not advisable. As an adviser you will need to advise your client on both options. You will need to be sure that your client understands the pros and cons of each option and is able to make an informed choice.

Useful information to gather from your client

It is always useful to have a broad understanding of a young person’s background and needs before advising them on their options or advocating on their behalf to either children’s social care or the housing department. Useful information includes:

Basic details i.e. age, immigration status, employment or education status

Why has the young person’s relationship with their parents or carers broken down? Are they at risk of harm at home?

Has your client been living independently for some time or are they currently sofa surfing?

Have they ever been looked after by the local authority or is there any existing involvement with the children’s social care department, do they have an allocated social worker. If the young person is known to children’s social care already it may be easier to get them support with their housing situation.

Are they at risk of any immediate harm, are there concerns around criminal or sexual child exploitation or child trafficking? If there are, you should make this clear in all communications with the local authority and ask that they also consider the National Referral Mechanism. You can find more information on modern day slavery and The National Referral Mechanism.

Do they have any additional needs or disabilities?

Some young people may have tried to get help many times before accessing advice. To help support the young person to get the help they need, advisers can:

Make contact with children’s social care and let them know of your client’s situation. Ask that a child in need assessment is carried out or their current Child in Need or Child Protection Plan is updated if they’re already known to services.

Telephone contact should be followed up by a written referral — local authorities should publish a Multi Agency Referral Form often referred to as a MARF on their website or The Local Children’s Safeguarding Board’s website. There should also be a secure email address available to send the referral. Your referral should include why you believe your client should be considered a child in need. You can refer to the legislation and case law above and outline how this relates to your client.

If your client is homeless on the day they approach your service you should initially ask that children’s social care department accommodates them. However, if they refuse, the young person should be supported to make a homeless application to the housing department and ask that emergency accommodation is provided.

If the client doesn’t have anyone to go with them to the council offices, consider if you can support the client in person to make a homeless application or provide a letter outlining how they meet the criteria for emergency accommodation and ask that they are provided with accommodation that day. You can read more about homeless applications and sample letters on AdviserNet.

If emergency accommodation is offered and accepted by the client, children’s social care are still required to carry out their assessment and determine if the young person is in need.

If emergency accommodation is refused or there is a delay that indicates emergency accommodation from the housing department or children’s social care is not going to be provided on the day you should consider referring your client to a solicitor or if your local office has a legal aid contract consider sending a letter before action.

How to Challenge Decisions

If your client has been refused accommodation or support you should consider challenging the local authority. However, this is a complex area of law. Decisions not to provide interim accommodation (in response to a homeless application) or support for a child in need do not attract the right of internal review. Although, the client would have the option to make a complaint, due to the time sensitive nature (i.e. a homeless child) the only realistic remedy is likely to be a judicial review, starting with a letter before action. If your local office has a solicitor and legal aid contract this may be something that can be done in house. However, it is likely that you may need to refer your client to a solicitor specialising in this type of work. You can read more about challenging homelessness decisions and the Judicial Review process on AdvisorNet.

Finding Legal Representation

If the young person you are supporting is homeless or threatened with homelessness, they might be able to get legal aid funding. These types of issues can be covered by a housing, public or family law specialist. You can find out if your client is eligible for legal aid or legal help on GOV.UK website . You can find local solicitors with legal aid contracts on the Law Society website.

Summary

If your service is approached by a homeless 16 or 17 year old they can be supported to contact children’s social care who have a legal duty to carry out a child in need assessment, they have the ability to accommodate a young person while they are conducting their assessment. However, if your client is homeless already or has nowhere to stay while the assessment is being carried out the local authority housing department have a parallel duty to provide emergency accommodation and make enquiries as to what, if any housing duty is owed to the young person.

Local authority children’s social care and housing departments should have a joint protocol and framework which outlines how they will work together to support homeless young people. You can ask your local authority for a copy of this so you are familiar with the process.

Footnotes;

[1] para 4.4 Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation, MHCLG/DfE, April 2018

Housing needs of vulnerable 16 and 17 year olds: Keeping homeless older teenagers safe

More Than a Number — The Scale of Youth Homelessness

National Youth Advocacy Service

Coram Children’s Legal Centre

Become Charity

Vicky Allen is a member of the Housing Expert Advice Team at Citizens Advice.

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