Children’s rights legal digest – January 2021

While the Southwark judgment and the resulting statutory guidance clarified the legal duties of local authorities in supporting 16 and 17-year-olds who are homeless, practice remains varied across the country. Last year, research by Just for Kids Law found that many 16 and 17 year-olds continue to be accommodated under Section 17 of the Children Act 1989 or under Part 7 of the Housing Act 1996, receiving minimal and inadequate support as a result.

Below, we look at the criteria that determine whether a duty under Section 20 of the Children Act 1989 arises and the implications of ‘side-stepping’ these legal obligations. We also examine the relevant statutory guidance which further stresses the rights and entitlements of this group of children.  

‘The Southwark judgment’ and the rights of homeless 16 and 17-year-olds

In 2009, the House of Lords (HoL), the predecessor to the Supreme Court, considered the following question in a case concerning a homeless 17-year-old boy: If a 16 or 17-year-old child who is homeless presents to their local authority and asks to be accommodated under Section 20 of the Children Act 1989, can the local authority refer that child to the local housing department instead? 

The judgment, commonly referred to as ‘the Southwark judgment’, confirmed and highlighted “the primacy of the specific duty owed to individuals in Section 20 over the general duty owed to children in need […] in Section 17”. The court clarified and reaffirmed local authority duties towards homeless 16 and 17-year-olds, reminding local authorities that, in an earlier case, the House of Lords had found that children need more than a roof over their heads and that local children’s services authorities cannot avoid their responsibilities towards this challenging age group by passing them over to the local housing authorities”.

The case concerned a 17-year-old boy, G, who had been excluded from his family home following the breakdown of the relationship between him and his mother. After leaving his family home, G spent some time living with friends and ‘sofa surfing’. He then sought legal advice and was advised to present himself to the children’s services department and request, firstly, an assessment under Section 17 of the Children Act 1989 and, secondly, provision of accommodation under Section 20 of the Children Act 1989. Following an exchange between G’s solicitor and the local authority, G was referred to a social worker for an assessment and was placed in a bed and breakfast.  

The local authority concluded that G’s “primary needs” related to housing and education and therefore the provision of accommodation by the under the Housing Act 1996, rather than under Section 20 of the Children Act 1989, would be sufficient, alongside referrals to a number of support agencies (which included a referral for “ongoing social work support”).

G’s solicitor argued that because a specific duty under Section 20(1) of the Children Act 1989 had arisen, accommodation was provided by the council under the Children Act 1989, not the Housing Act, and this meant that he was an “eligible child” (see Schedule 2, Paragraph 19B of the Children Act 1989) and a “former relevant child” (see Section 23C(1) of the Children Act 1989) when he turned 18.  

After being dismissed in the High Court and then the Court of Appeal, the case reached the HoL which ruled that G had in fact been accommodated by the local authority under Section 20(1) of the Children Act 1989 Act when he first presented himself as homeless to children’s services.

Duty to accommodate under Section 20

In deciding whether a Section 20 duty arises, a local authority must ask itself a number of questions. Some of them concern facts and some require a more careful assessment and judgement about the individual circumstances of the child:

  1. Is the person a child?
  2. Is the person a child in need? (as defined in Section 17 of the Children Act 1989)
  3. Is the child within the local authority’s area? 
  4. Does the child appear to require accommodation?
  5. Is the need for accommodation the result of:
    (a)  there being no person who has parental responsibility for the child;
    (b)  the child being lost or abandoned; or
    (c)  the person who has been caring for the child being prevented from providing them with suitable accommodation or care.
  6. What are the child’s wishes and feelings regarding the provision of accommodation? (See Section 20(6) of the Children Act 1989)
  7. What consideration (having regard to his age and understanding) should be given to those wishes and feelings? 

The House of Lords was clear that while Section 20 criteria require “an evaluative judgment on some matters”, they don’t allow for discretion. This is now echoed in statutory guidance which was adopted after the Southwark Judgment. It states:

The powers of local authorities to provide accommodation under section 17 cannot be used as a substitute for their duty to provide accommodation under section 20(1) of the 1989 Act to homeless 16 and 17-year-olds in need. Children’s services do not have the option of choosing under which provision they should provide accommodation for homeless 16 and 17-year-olds. Section 20 involves an evaluative judgment on some matters but not discretion (para 3.59).

Statutory guidance now sets clear standards for supporting homeless 16 and 17 year-olds and confirms that local authority duty to accommodate young people under Section 20 is not “a matter for local policy”. It arises whenever the criteria in Section 20(1)(a) to (c) or in Section 20(3) are met. It also states firmly that:

  • The duty to conduct an assessment applies to all those under the age of 18, including children who are approaching their 18th birthday, and those who are pregnant or are parents (para 3.1).
  • A child in need of emergency accommodation should be accommodated under Section 20 while their needs are further assessed (para 3.4).
  • The welfare of the child is paramount and a 16 or 17 year-old must not be placed at risk whilst waiting for the completion of an assessment (para 3.23).

Statutory guidance also now makes clear that bed and breakfast accommodation, including hotels and nightly let accommodation with shared facilities, is not suitable for any 16 or 17-year-old (para 5.10).

You can access the full judgment here: [2009] UKHL 26

Rights of children accommodated under Section 20 of the Children Act 1989

Ensuring that homeless 16 and 17-year-olds are accommodated under Section 20 of the Children Act 1989 rather than Section 17 of the Children Act 1989 or under the Housing Act 1996 is vital because it secures their entitlement to broader and longer-term support, financial and other. A child accommodated under Section 20 becomes an ‘eligible child’ and subsequently a ‘former relevant child’ and this means that they enjoy the wider protections and entitlements guaranteed in the Children Act 1989 and in secondary legislation, for instance The Care Planning, Placement and Case Review (England) Regulations 2010 and The Care Leavers (England) Regulations 2010. A child wrongly accommodated under Section 17 or under the Housing Act 1996 will not enjoy the same protections and will lose out on support such as pathway planning, having a personal advisor, receiving financial assistance with education and more. Looked after status can be granted retrospectively (meaning it can be backdated) and advocates should support children and young people to seek legal advice where this might be the case.

Because accommodating a 16 or 17-year-old under Section 20 requires the child’s agreement, it is vital to ensure they are fully and properly informed about the ramifications of such a decision. Statutory guidance states clearly that:

* The social worker leading the assessment must provide realistic and full information about the package of support that the young person can expect as a looked after child and, subsequently, as a ‘former relevant’ care leaver. If they are not looked after for the prescribed (required) period, the young person leaving care would be a ‘person qualifying for advice and assistance’ as set out in section 24 of the 1989 Act (para 3.42).

* Where a 16 or 17-year-old child in need wishes to refuse accommodation offered under section 20 of the 1989 Act, children’s services must be satisfied that the young person: a) has been provided with all relevant information; b) is competent to make such a decision; and c) that they do not need to take additional safeguarding action (para 3.49).

* Young people should have access to independent advocacy and support to assist them in weighing up the advantages and disadvantages and coming to a balanced decision and understanding and navigating the housing system. Independent advocacy and support services can play a key role in supporting 16 and 17-year-olds who are homeless or threatened with homelessness (para 3.47).