HACKNEY MIGRANT CENTRE/HACKNEY COMMUNITY LAW CENTRE

Research project into the effect on children of migrant adults of living in accommodation provided by local authorities under s.17 Children Act 1989 duties

Funded by the Strategic Legal Fund

Background: duties on local authority children’s services to provide services to children who are in need

Adults who have no recourse to public funds, or have a form of immigration status that does not permit them to claim non-contributory benefits or homelessness assistance, do not have any right to subsistence from the state[1]. If they have dependent children, and the children are “in need” because their parents have no resources, application can be made to children’s services to provide “a range and level of services” in order to meet those needs (s.17(1) Children Act 1989). The duty at s.17 on children’s services is to “to promote the upbringing of such children by their families”. As a result, children’s services will normally provide accommodation, assistance in kind and/or cash (s.17(6)) so that the family can be accommodated and receive basic subsistence.

The provision of services by children’s services is a safety-net, and will only be given where children’s services have assessed that the child is “in need” of subsistence and/or accommodation, in other words that the adult or adults caring for the child cannot provide for the child’s subsistence and cannot arrange accommodation.

The duty is not intended to be long-term. Once services have been provided, children’s services will review whether the child continues to be in need of such services, or whether the adult carer has achieved sufficient resources so that s/he can provide for the child’s needs without the assistance of children’s services.

Families who receive these s.17 services are those who, because of their immigration status, are not entitled to mainstream welfare benefits (which provide a basic level of subsistence and help with housing cost through housing benefit and homelessness assistance). They will not be asylum-seekers because those families are entitled to assistance from the Home Office under Part 6 Immigration and Asylum Act 1999 (“NASS”). Sometimes the adults might be entitled to work, even though they are prevented from claiming benefits, but the adult might be unable to work through illness or child-care responsibilities. It follows that they have no means of state support (and often no right to work) save for the safety-net range of services that children’s services provide under s.17 in order to meet the child’s needs.

These families often approach children’s services at times of emergency, when all forms of informal support (accommodation provided by friends or paid for by informal employment) have come to an end. Children’s services are required by law to provide services as an emergency if it appears to them that the child is in need of such services (subsistence and/or accommodation) and to assess whether the child is in need and, if so, what services should be provided to meet those needs. As part of the assessment, children’s services are entitled to consider whether the adult can regularise his or her immigration status, so that in the future the adult can work or claim benefit and thus the child will no longer be in need of such services. Children’s services are also required, in cases where the adult is unlawfully present in the UK, only to provide assistance to enable the family to return to the adult’s home country. However, if the adult has an outstanding application to the Home Office for leave to remain or there are other human rights (or European Union rights) which would be infringed if the family is assisted to travel, then children’s services should not be providing travel assistance but should provide the services in the UK.

In 2003, the House of Lords decided that it was not unlawful for children’s services to offer accommodation to the child or children alone, without his or her adult carer, under s.20 Children Act 1989 (voluntary care) rather than providing s.17 assistance to the whole family[2]. In practice, children’s services will usually provide s.17 services rather than offering to remove the child into voluntary care.

Gate keeping: uncertainty and delay

Agencies that assist these migrant adults with children to approach children’s services are well aware that children’s services practise what is informally known as “gate-keeping”. Applicants can be turned away from children’s services on a number of grounds. Common practices seem to include:

  • concluding that the family is not yet at the stage of needing help, because it may still have some informal and insecure accommodation or subsistence available to it;
  • concluding that the child is not “within their area” and so is the responsibility of another local authority.

The assessment process under s.17 Children Act 1989

The assessment is to be undertaken in accordance with the guidance at Working Together to Safeguard Children (March 2013, Department of Health & Department of Education).

Subsistence provided under s.17

The subsistence level to be paid to such families was recently considered by the Administrative Court in R (PO) v Newham LBC[3]. Newham had the following rates. The Administrative Court was clear that it could not order what was a proper rate to pay families who had no access to mainstream welfare benefits, but it also held that Newham’s rates were arbitrary, and not consistent with rates paid under child benefit.

Type of person/people / £/week
Couple with up to 2 children / £50.00
Couple with 3 children
(additional children, £7 per week) / £60.00
Lone Parent with 1 child / £30.00
Lone Parent with 2 children
(additional £7 per week) / £35.00
Baby under 12 months old An additional / £5
Pregnant women and children
under 3 years old An additional / £3
Where overheads such as gas and electricity are not included in accommodation / Additional £10/week

These rates should be compared with those paid under mainstream welfare benefits, and those paid under the NASS scheme. They should also be compared with rates paid by other local authorities.

Accommodation

The experience of advice agencies and other advisers to these families is that families tend to be placed in poor quality hostel-type accommodation or poor quality private rented accommodation. The location of that accommodation might be some considerable difference from the family’s previous accommodation and from the district of the local authority providing the services and accommodation. Advisers are aware of families being accommodated by Hackney Council in Southend, for example.

The impact on children

There has been no study of the impact on children of:

  • delays and uncertainties in the initial provision of subsistence and accommodation;
  • the uncertainties and continuing assessment process once subsistence and accommodation has been provided;
  • the adequacy of subsistence provided;
  • the adequacy of accommodation provided;
  • the location of accommodation provided; and
  • the extent to which children have to move and the impact on them of doing so.

Methods

This study aims to provide both quantitative and qualitative research into the effect on children of the above: quantitative analysis from the cases held by voluntary organisations, law centres & solicitors’ firms; qualitative analysis in the form of interviews with children and/or parents. FOI requests will be made and their responses analysed. The existing literature will require review.

Experienced lawyers Nathaniel Matthews, Wendy Pettifer and Liz Davies will provide the legal background, expertise and analysis.

Other studies

There are existing studies dealing with the impact on children of living in temporary accommodation or in other forms of bad housing. Children living in temporary accommodation (in these studies) are housed by local authorities under homelessness duties and their parents claim mainstream welfare benefits to pay for food and other subsistence, and to help meet housing cost through housing benefits. Whilst there is a considerable impact on these children in living in temporary accommodation, they do not have the additional stress of there being no resources for food, subsistence etc at all. In addition, they will be living in temporary accommodation with an aim to move on into secure social housing or longer-term private rented accommodation.

Children living in accommodation provided under s.17 Children Act duties face the well-documented problems of living in temporary accommodation plus additional problems as a result of the uncertainty of the arrangements, and the inadequacy of the accommodation.

The existing studies are:

Living in Limbo: Survey of Homeless Households living in Temporary Accommodation (Shelter, 2004);

Chance of a Lifetime: impact of bad housing on children’s lives (Shelter, 2006);

Homeless Bound (National Housing Federation 2012)

No place like Home: councils’ use of unsuitable bed and breakfast accommodation for homeless families and young people (Local Government Ombudsman, 2013); and

Temporary accommodation: research findings (Shelter, August 2014).

These studies provide useful background in order to be able to research the additional impact on children of migrant families living in s.17 accommodation.

Resources

The research project is supported by voluntary sector groups assisting migrants: Hackney Migrant Group and Project 17. The legal background is provided by two solicitors at Hackney Community Law Centre and an experienced barrister, Liz Davies.

Steering Group

The project is overseen by a steering group containing representatives of the Public Law Project, Project 17, Children’s Legal Centre, Southwark Law Centre and Shelter.

Similar work

Southwark Law Centre is conducting a research project into the literature available on families who have no recourse to public funds. Public Law Project is doing a research project into s.17 families and domestic violence.

Potential strategic litigation

There has already been a challenge to the adequacy of subsistence rates: R (PO)v Newham LBC (see above). There remains scope for a challenge regarding the adequacy of accommodation provided.

[1] Except in cases of destitution which breach the Article 3 threshold of unlawful or degrading treatment.

[2] R (G) v Barnet LBC [2003] UKHL 57, [2004] 2 AC 208, HL

[3] [2014] EWHC 2561 (Admin)