Homeless Young People & HousingA presentation to the Housing Law Practitioners AssociationWednesday 21st May 2008Park Crescent Conference Centre, London
The Background
n Recognition of the need for social housing
n The client group
n The receiving agencies
n The problem created by the service arrangements
n The problem created by the statutory schemes
The Homelessness route
n Part 7 of the Housing Act 1996
n The ‘front end’ duties – inquiries & interim accommodation
n Immediate assistance to those in apparent need with inquiries and assessment to follow. Preliminary assessment should b
n e carried out on the day of application to determine whether the interim accommodation duty is owed
n Interim accommodation where the authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need.
n Any questions of intentionality are deferred to be dealt with by the inquiries into what if any duty is owed.
n The duty is mandatory, immediate and triggered by a low threshold. It requires a simple administrative decision based on the apparent circumstances.
n Inquiries must begin as soon as an authority have reason to believe that an applicant may be homeless or threatened with homelessness
The Children Act route
n Working out who is ‘relevant’ or ‘looked after’
n Part III of the Children Act 1989
n There is no obvious parallel immediate mandatory statutory duty to accommodate.
n There is a statutory timetable for the assessment of need and assistance.
n Section 17 imposes a specific duty on social services to take reasonable steps to conduct an assessment of a child’s needs
n The Framework for the Assessment of Children in Need and their Families requires an initial assessment within 7 working days from referral to social services and, if the authority decide to carry out a core assessment, to complete it within 35 working days.
n The initial assessment should determine whether and when accommodation is required. It is usually provided pursuant to sections 17 or 20 of the Act.
The interface between the schemes
n In M the Court of Appeal described the two statutes as “entwined”[1] and the duties they impose as “separate though they run in parallel and to some extent overlap[2]”.
n [2] Pill LJ at 96
The Part III Children Act duties
n Care and consent: parental consent is required to accommodate a child under 16 and the child’s consent is required to accommodate a child over 16
n The assessment duty
n Section 17 of the Children Act 1989 imposes on local authorities a general duty to safeguard and promote the welfare of children ‘in need’ in their area. Under section 17(10), a child is ‘in need’ if:
n he is unlikely to achieve or maintain, or 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 [Part III of the Act]; or
n his health or development is likely to be significantly impaired or further impaired, without the provision of such services; or
n he is disabled.
n Section 17(11) CA1989 defines development as “physical, intellectual, emotional, social or behavioural development”, and health as “phyiscal or mental health”.
n That assessment must be carried out in accordance with the ‘Guidance on Accommodating Children in Need and Their Families’[1] and the ‘Framework for the Assessment of Children in Need & Their Families’[2].
[1] LAC (2003)13
[2] DoH April 2000
The section 20 accommodation duties
n Section 20(1)(a-c) CA1989 provides that “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 there being no-one who has parental responsibility for him, his being lost or having been abandoned, or 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”
n Section 20(3) CA1989 provides “every local authority shall provide accommodation for any child in need within their area who has reached the age of 16 yrs and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation”.
n Section 20(4) CA1989 provides“a local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare”
n Section 20(5) CA1989 provides “a local authority may provide accommodation for any person who has reached the age of 16 yrs but is under 21 in any community home which takes children who have reached the age of 16 if they consider that to do so would safeguard or promote his welfare”.
n Section 20(6) CA1989 stated that before providing accommodation under section 20 the authority must ascertain the child’s wishes and feelings relating to accommodation and give due consideration to them.
The looked after child
n Section 22(1) CA1989 defines a child as becoming “looked after” by a local authority if he has either been in their care or has been provided with accommodation in the exercise of social service functions including under Part 3 of the CA1989.
n Section 22(2) provides that “accommodation” for this purpose refers to accommodation provided for a continuous period of more than 24 hours.
The nature of s20 accommodation
n Does not have to be foster care or children’s home!
n Section 20(6) deals with the ‘form and manner in which accommodation is provided’ and the ‘very wide discretion under s23(2) (f)’ to place a child in ‘bed and breakfast accommodation or a flat, alone or sharing etc’. (Paragraph 55 of the Holman judgment)
R((H and others) -v- (1) Wandsworth LB and others [2007] EWHC 1082(Admin)
S17 or 20?
n S 17(6) was amended by Adoption and Children Act 2002 (s116) to enable a local authority to provide accommodation under s17 as well as under s20. See local authority circular (2003)13 for guidance.
n Does the child require accommodation or simply require help with accommodation?
‘…in certain circumstances, the local authority may consider that what the child requires is not "accommodation" (which would give rise to the duty under section 20(1)), but "help with accommodation", which would not.’
(See para 64 of R((H and others) -v- (1) Wandsworth LB and others [2007] EWHC 1082(Admin)
The eligible or relevant child & leaving care services
n Sections 23(A)-(E) of, and Schedule 2 to, the CA1989 read together with the Children (Leaving Care)(England) Regulations 2001 provide that where a child aged 16 or 17 yrs has been looked after by a local authority for more than 13 weeks and a part of that period was after the child’s 16th birthday s/he becomes an eligible child for the purposes of the leaving care provisions. A relevant child is a child aged 16 or 17 who was previously an eligible but who is no longer accommodated by the local authority.
The Pathway Plan to adulthood
n Local authorities are obliged to assess the needs of an eligible or relevant child within 3 months of their 16th birthday or after they have been looked after for 13 weeks if that is later and produce a Pathway Plan as soon as is practicable thereafter. An eligible or relevant child must be allocated a personal advisor who is independent of the local authority.
n The contents of the Pathway Plan are prescribed by Regulation 8 of and the Schedule to the Children (Leaving Care)(England) Regulations 2001 which require, inter alia, the following matters to be dealt with in the Plan –
n Details of the accommodation the child or young person in to occupy
n A programme to develop the practical and other skills necessary for him or her to live independently
n The financial support to be provided in particular where it is to be provided to meet his or her accommodation and maintenance needs
n Contingency plans for action to be taken by the responsible authority should the Pathway Plan cease to be effective.
See R(G) v Nottingham City Council and Nottingham University Trust Hospitals [2008] EWHC 400 (Admin) for an analysis of the nature and content of the pathway plan and the need for an independent personal advisor.
The former relevant child
n An eligible child and a relevant child will both become a former relevant child following their 18th birthday
n Sections 23C & 24B set out the duties owed to them.
n They require the authority to keep the Pathway Plan under regular review. This must deal with accommodation needs.
n They give the authority power to contribute to accommodation expenses so the FRC can live near to where he is working or seeking work, or where he is or will be in employment.
n Section 23C(4)(c) provides a safety net duty which requires the authority to give other assistance to the extent that his welfare requires it, which may in exceptional circumstances be in cash.
n The power may be used to deliver a Pathway Plan assessed need for secure accommodation, including by payment of security deposit and/or advance rent for private sector accommodation.
n Part 7 of the Housing Act 1996
n The ‘full’ accommodation duty - section 193(2)
n The component parts of the duty test :
(i) homelessness
(ii) eligibility
(iii) priority need
(iv) intentional homelessness
The application
n Section 184
n Chapter 6 of the Code
n application can be made any department of an authority
n application can be made in any form
n application can be made by or behalf of an applicant
n intends an immediate service response
The duty to make inquiries
n Section 184(1) of the 1996 Act provides that –
n If the local housing authority has reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such enquiries as are necessary to satisfy themselves –
n whether he is eligible for assistance, and
n if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
n Advice and assistance during normal office hours
n Advice & assistance by 24 hour emergency cover
n The inquires trigger - reason to believe that an applicant may be homeless or threatened with homelessness.
n Preliminary assessment - on the day of application .
n Inquiries to be completed as quickly as possible
n Inquiries to be completed and a decision notified within 33 working days
The interim duty to accommodate pending inquiries
Section 188 : “interim duty to accommodate in case of apparent priority need”.
Section 188(1) provides –
If the local authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty, if any, owed to him under the following provisions of [Part 7]….
Section 188(2) provides –
The duty ceases when the authority’s decision is notified to the applicant, even if the applicant requests a review of the decision.
The interim duty to accommodate is mandatory and immediate[1] where the authority have reason to believe that the applicant is homeless, eligible for assistance, and in priority need.
The threshold is low[2]. ‘Having reason to believe’ is a lower test than ‘being satisfied’[3] which is the test to be applied to determine whether and if so what ‘duty’ is owed under Part 7.
The interim duty lasts only for the duration of the initial inquiry and duty decision stage : ie. until a first instance duty decision is notified pursuant to section 184(3).
[1] Code of Guidance chapter 7 and para 6.5
[2] Code of Guidance para 7.3
[3] Code of guidance para 6.5
The intended interface between housing and social services
Chapter 5 of the Code : “Working with Others”
Chapter 12 of the Code is directed specifically at 16 & 7 year olds and provides that –
A framework for joint assessment of 16 and 17 year olds will need to be established by housing and children’s services authorities (and housing and children’s services departments within unitary authorities) to facilitate the seamless dicharge of duties and appropriate services to this client group[1]
Chapter 12 of the Code gives detailed guidance on the immediate inquiry and interim accommodation duties which arise :
Paragraph 12.5 provides –
Responsibility for providing suitable accommodation for a relevant child or a child in need to whom a local authority owes a duty under s.20 of the Children Act rests with the children’s social services authority. In cases where a housing authority considers that a section 20 duty is owed, they should verify this with the relevant children’s services authority
Paragraph12.6 provides –
In all cases of uncertainty as to whether a 16 or 17 year old applicant may be a relevant child or a child in need, the housing authority should contact the relevant children’s services authority and, where necessary, should provide interim accommodation under s.188, pending clarification.