Unfinished business: homeless young people and Children Act 1989 s20
A recent case has highlighted the continuing problem of cash-strapped local authorities sidestepping their responsibilities to accommodate children under s20. Fiona Couzens and Samuel Jacobs report.
As the Children and Social Work Bill looms, extending and strengthening local authorities’ duties to care leavers, the incentives for sidestepping will be stronger than ever.
Children Act 1989 (CA) s20 imposes a clear and mandatory duty on local authorities to provide accommodation to children whose circumstances meet some relatively broad criteria. With accommodation under s20, the child becomes ‘looked after’ by the local authority and if he or she is looked after for a period of at least 13 weeks, that child becomes entitled to a range of services as a care leaver. The obligation represents an impressive intent by parliament that children should never be without an adequate home and that those who do turn to a local authority for support are assisted into adulthood.
Considering the financial constraints faced by local authorities, it is perhaps unsurprising that they have been known to find creative ways of acting by any means other than under s20. Indeed, Lady Hale made a frank comment to that effect in R (M) v Hammersmith and Fulham LBC  UKHL 14 (para 24).
The few uncertainties that did exist in the application of s20 have largely been resolved by R (M) and R (G) v Southwark LBC  UKHL 26. There is no lack of clarity as to how s20 is to be applied and in both cases it was made clear that local authorities are ‘not entitled to “sidestep”’ their duty, whether by providing accommodation alternatively under CA s17 or under the Housing Acts. And yet we are aware, from the numbers of children and young people being referred to us for help, that sidestepping of s20 duties is alive and well, and continues to occur within many local authorities on a large-scale basis across the country. Moreover, as the Children and Social Work Bill looms, extending and strengthening local authorities’ duties to care leavers, the incentives for sidestepping will be stronger than ever.
A recent case in point is that of R (L) v Camden LBC CO/6606/2015, which was settled by the authors a day prior to the final hearing. The case concerned a young person, now aged 19, who was 16 at the time she was accommodated by Camden’s children’s services. By the point at which accommodation was provided, L’s relationship with her mother had broken down to the extent that she had been physically assaulted and had begun self-harming.
Following its assessment of L’s needs, Camden concluded that she would be supported under CA s17. The reason given was that L had good independent living skills and could satisfactorily be supported by a key worker in ‘pathway accommodation’, an argument very similar to that run by the local authority in R (G). Her case was then closed to social services. The authors’ view is that the decision was unlawful as her circumstances undisputedly met the s20 criteria; in those circumstances, the mandatory duty was triggered and the authority could not choose to provide accommodation under s17.
In the event, L’s development thereafter demonstrated precisely why such young people should be provided with support under s20: she developed anxiety and dropped out of college. She sought legal advice because she felt a real absence in her life of an adult figure to provide her with guidance for the future and to help keep her life on track. Judicial review proceedings were issued.
During the course of the proceedings, a copy of Camden’s policy entitled Camden children, schools and families protocol for working with homeless young people aged 16 and 17 years was obtained. L amended her claim so as to challenge it on the basis that, unlawfully, it conveyed a message that where a child did not have additional needs beyond housing, he or she should not be accommodated under s20. It was argued that Camden’s decision to sidestep its duties towards her was made pursuant to, and consistently with, an unlawful policy.
The proceedings were settled in L’s favour a day before the final hearing and she will now start to receive support under the CA as a care leaver. Camden has also agreed to conduct a review of its protocol on the basis that ‘the protocol should not direct, or give rise to an unacceptable risk, that a child who is in need (as defined by the 1989 Act) and who requires accommodation as a result of one of the factors set out in section 20(1)(a)–(c), not be offered accommodation under section 20 on the basis that they do not have needs additional to a need for housing’. The revised protocol is due to be published by 12 September 2016.
It is hoped that the review of the policy will avoid similar errors (if that is the term) being made in future. However, there are likely to be a number of young people in Camden who continue to be affected by the current and previous versions of the protocol and who can be assisted using L’s case. The authors have already used the case to positive effect in relation to another young person in Camden.
This case serves as a useful reminder that practitioners must remain vigilant of the actions and policies of local authorities even in areas of law that appear to be relatively settled, and that there remains plenty of unfinished business in litigating for homeless children and young people. ■