In this issue, we take a closer look at a November 2021 decision of the Local Government and Social Care Ombudsman which found a local authority had failed to accommodate a child under Section 20 of the Children Act 1989, breaching statutory guidance and its own local guidance for social workers. The Ombudsman accepted the complained ‘early’ (after stage 2 of the Children Act 1989 procedure) and found the council had also failed to inform the child of her rights and did not listen to her concerns. Aside from agreeing several recommendations to remedy the injustice suffered by the child, the Ombudsman recommended the council review all homelessness applications received from 16 and 17-year-olds during a specified period and proactively make remedies where needed without waiting for a formal complaint.
Local Government Ombudsman recommends review of homelessness applications from 16 and 17-year-olds following failure to accommodate a child under Section 20 Children Act 1989
A* complained to the Ombudsman that the council wrongly failed to accommodate her under Section 20 of the Children Act 1989 on more than one occasion, which led to her being homeless and physically attacked, as well as missing out on various support services she would have been entitled to as a looked after child. By the time the council accepted its duties towards A under Section 20, she was about to turn 18 and the council denied her leaving care services because she had not been accommodated long enough. These events happened in the context of non-recent safeguarding concerns about A, both within and outside her family.
The Ombudsman’s powers, set out in the Local Government Act 1974, mean that he cannot question the merits of councils’ decisions, unless there was fault leading to them. In A’s situation, the Ombudsman concluded that “on the balance of probability, if the council had carried out a proper and full assessment … taking full account of the Southwark principles, it is more likely than not that [A] would have been assessed as a child in need requiring accommodation under Section 20 [of the Children Act 1989] to safeguard her welfare”.
During the Ombudsman’s investigation, A said:
“I have been physically attacked on two occasions and on both occasions children social services neglected their duty of care. They ignored me and didn’t take me or what I was saying seriously. I was made to feel that my voice is not important and made to feel at fault for situations out of my control… It took for me to be physically hurt for someone to care. My words were not enough.”
A’s personal circumstances and the events that preceded her complaint are complex. A’s parents were separated, and she used to live with her father. There were records of A telling her school, the council and the police that her father had sexually abused her between the ages of 5 and 13, as well as A telling the council she was “hanging around with older males using drugs and alcohol” (A later informed the council these men were sexual abusing her). The council’s assessment led to a conclusion that A could be protected by her parents and that there was no risk to A from other people. A then moved in with her mother.
In early 2019, A called the police saying her mother had pushed her and “trashed her room”. She was advised by the police to go to her father’s. It was at this point that A’s advocate, whom A had an existing relationship with and who worked for a local youth charity, contacted the council saying she believed A should be accommodated under Section 20 of the Children Act 1989. The council responded by advising A, who had just turned 17, to contact the local housing referral unit. Staff there raised child protection concerns (A’s homelessness, being estranged from her mother and living temporarily with her father) but the council concluded A could return to her mother’s and that there was no need for an assessment. There is no evidence of the council’s safeguarding team interviewing A about her experiences or her concerns.
A was placed in supported accommodated by the housing referral unit. This was expensive (£400 per week) and A was expected to pay rent and the cost of “24-hour support”. The council considered this appropriate accommodation for A and said there was no need for its involvement. By the time A’s housing benefit came through (which was capped because A was working at the time), she had accrued significant arrears.
The advocate raised concerns with the council on several occasions.
Later the same year A was evicted from the supported accommodation because of rent arrears reaching almost £4,000. The council was made aware of this.
A began ‘sofa surfing’ and shared her concerns about “getting involved again in the drug culture”, but the council’s assessment concluded that A could live with her mother and that, because of her rent arrears, she could not be offered supported accommodation. A tried to return to her mother’s but was told to leave and, out of desperation, she reached out to one of the older men she used to spend time with when younger. A was attacked by him because she refused to do what he expected. She was admitted to A&E where a nurse contacted the council saying A could not be discharged until a social worker got involved. This led to a strategy meeting and a decision to (a) refer A to the council’s ‘complex safeguarding hub’ and (b) accommodate her under Section 20 of the Children Act 1989.
With help from an advocate, A complained to the council under the statutory representations procedure. A few months later, A turned 18 and was informed by the council that she would not be regarded as entitled to leaving care support because she did not meet the 13-week ‘threshold’ set by the law.
The legal framework
- Children Act 1989
Section 17 places a general duty on local authorities to safeguard and promote the welfare of children within the area who are in need by providing a range of services. Section 17(10) defines a child ‘in need’.
Section 47 states that if a local authority “has reasonable cause to suspect a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm”, it must (“shall”) investigate these concerns to decide if action is needed to safeguard and promote the child’s welfare. Statutory guidance – Working together to safeguard children (2018) – says the purpose of an assessment, regardless of which legislation it is being carried out under, is to: gather information; analyse the child’s needs and any risk and harm; decide whether the child is a child in need (Section 17) or is suffering or likely to suffer significant harm (Section 47); and provide the required support.
[Even though the Ombudsman does not reference Sections 17(4A) and 47(5A) of the Children Act 1989, it’s important to keep in mind that assessments under both sections require local authorities to ascertain the child’s wishes and feelings and give them due consideration (in line with age and understanding) before making any decisions.
Section 20 places a duty on local authorities to provide accommodation for any child in need who appears to require accommodation because there is no person with parental responsibility for the child, the child is lost or abandoned or the person caring for the child is prevented from providing suitable accommodation or care. There are several elements of Section 20 that are important in the context of A’s situation and the Ombudsman’s findings:
– Councils must ascertain the child’s wishes and feelings (so far as reasonably practicable and consistent with the child’s welfare) and give them due consideration (in line with age and understanding) before providing accommodation – Section 20(6).
– Councils must provide accommodation for any child in need who has reached the age of sixteen and whose welfare would likely be seriously prejudiced if accommodation is not provided – Section 20(3).
– Children aged sixteen or over can consent to being accommodated by the council without their parents’ consent – Section 20(11).
- The Southwark judgment and associated statutory guidance
The landmark Southwark judgment, along with the statutory guidance that followed, clarified the legal duties of local authorities in supporting 16 and 17-year-olds who are homeless. [To read our summary of the judgment, please click here].
“Local authority duties for accommodating young people under this section are not simply a matter for local policy. The duty is engaged whenever a child in need in the local authority’s area requires accommodation as a result of one of the factors set out in Section 20 … As a result of being accommodated by children’s services for a continuous period of more than 24 hours the young person will become looked after, and the local authority will owe them the duties that are owed to all looked after children, and once they cease to be looked after, the duties that are owed to care leavers … Children’s services will have a duty to maintain them, including meeting the cost of accommodation” (paragraphs 3.11-3.12).
Statutory guidance also makes clear that there are only two scenarios in which a local authority might find that a homeless young person should by supported under the Housing Act 1996 rather than the Children Act 1989:
- The young person is not a child in need; or
- A 16 or 17-year-old child in need with capacity decides they do not want to be accommodated after they have been “properly and fully advised of the implications” (paragraph 3.13 of statutory guidance).
Complaint handling by the local authority
Following consideration of A’s complaint at stages 1 and 2, the council did not uphold A’s main complaint about the failure to accommodate her (sooner) under Section 20 of the Children Act 1989. The council said it considered the referral following A’s A&E admission to be ‘new’ in terms of safeguarding concerns and that previously available information justified its decisions not to accommodate A.
While A’s wish was to escalate her complaint to stage 3, the Ombudsman accepted it ‘early’, “because of the difficulties caused by the COVID-19 lockdown”.
In its communication with the Ombudsman, the council accepted that “as a point of learning, the council should have recorded the assessments more clearly against a risk of homelessness, and while some discussions took place over the phone with [A], there should have been more detailed recording from the social worker”. The council also recognised that it should have contacted A directly to complete the “triangulation of information”. The council maintained that the supported accommodation offered to A was suitable.
The Ombudsman’s findings
The Council had in place a Southwark-compliant guidance document for social workers which said that when supporting homeless 16 and 17-year-olds, children’s services, not housing, is the lead agency. The local guidance instructed social workers to offer interim accommodation alongside a referral to children’s social care for an assessment of need. It also reminded staff conducting assessments of children’s needs that “an assessment must provide realistic and full information about what the young person can expect as a looked after child and, subsequently, as a care leaver”, stressing the importance of young people receiving “accurate information”. The council also had a booklet for young people explaining its duties, the choices available to young people and the support that would be provided depending on what the young person chooses.
Despite this, and despite clear Children Act 1989 duties, the Ombudsman identified multiple failings by the local authority, ranging from not following its own guidance, to not assessing M’s needs appropriately, not informing A of her rights, denying her the opportunity to communicate her experiences and concerns appropriately and, consequently, making flawed decisions.
- The council did not properly assess A’s needs, including failing to take into account all relevant information known and available to the council (including about non-recent safeguarding concerns), not speaking to A personally and dismissing her concerns about not feeling safe at home. The Ombudsman said:
“To carry out an effective assessment, [A] should have been afforded more opportunity to explain her predicament to a social worker. The matters, which she was struggling with, were sensitive, personal and distressing. She should have been offered a personal interview”.
- A was denied the statutory support available to all looked after children, such as having a social worker, an independent reviewing officer, suitable accommodation and regular reviews of her care.
- The council failed to take appropriate action in light of A’s advocate and staff at the supported accommodation raising safeguarding concerns. Non-recent concerns about the risk to A of criminal exploitation were known to the council and records were available.
- In consequence of a flawed needs assessment the council’s failure to accommodate A, she had to live in and manage accommodation that was not suitable to her needs. This led to her accruing rent arrears, becoming homeless (again), feeling anxious about her future and desperate enough to reach out to a previous “criminal associate” who attacked her.
- A was not provided with the council’s booklet setting out her options and rights. Not being fully aware of the council’s duties towards her made it harder for A to challenge the council’s decisions at the time when they were being made.
Recommended actions and remedies:
- Individual remedies
The Ombudsman concluded that the injustice suffered by A was significant and this justified “a payment at the higher end of the Ombudsman’s tariff”. It was recommended and agreed that the local authority would:
1. Pay A £1,500 for the avoidable distress and harm caused.
2. Ensure her rent arrears have been written off and ensure that she is not deemed as intentionally homeless in future housing applications.
3. Consider A “a new care leaver” (aged 18) and offer her leaving care services which she has missed out on “as if she has just left care” (meaning leaving care services might extend beyond the age of 21, or 25, if she pursues further or higher education). The local authority should also consider if A is entitled to council accommodation as a new care leaver.
4. Devise a pathway plan setting out what support A now requires and what will be provided.
- Local authority-wide recommendations
Section 26D of the Local Government Act 1974 gives the Ombudsman (referred to in the 1974 Act as ‘Local Commissioner’) the power to investigate matters that come to his attention in the course of an investigation if it appears to him that a member of the public who has not made a complaint may have suffered injustice. In other words, Section 26D empowers the Ombudsman to investigate situations where other people may have experienced injustice like the one investigated by the LGSCO but may not be aware of it. This power is significant in helping address systemic issues where, for instance, a number of children and young people may have experienced injustice as a result of a single local authority policy. In this situation, the Ombudsman used its Section 26D powers to establish whether there may be other homeless children aged 16 and 17 whose homelessness applications had been dealt with improperly, leading to injustice. Accordingly, it was recommended that, within six months, the local authority:
5. Review its homelessness applications received from 16 and 17-year-olds between April 2019 and March 2020 to check decisions complied with the local guidance. In cases where the local authority discovers applications have not been dealt with properly, it should make remedies without the children and young people affected having to make a formal complaint.
6. Remind staff who deal with homelessness applications made by 16 and 17-year-olds to follow the local guidance (based on the Southwark judgment and statutory guidance).
7. Remind staff to provide children and young people with its booklet about rights and inform them about their right to complain under the statutory Children Act 1989 complaints procedure. The LGSCO said in his decision that “young people should not have to rely on advocates to tell them of the statutory complaints process”.
*In his decision, the Ombudsman refers to the complainant as ‘Ms X’. Throughout this summary, we have referred to her as ‘A’ to stress her young age and avoid the impersonal connotations of the letter ‘X’.
You can read the full decision statement here: Manchester City Council (20 008 516)
Learn more: You can learn more about the Southwark judgment in the January 2021 issue of our children’s rights legal digest and about local authorities’ duties towards children in need (under Section 17 of the Children Act 1989) in the February 2021 issue (scroll down to the blue box). For more information about the remit and powers of the Local Government and Social Care Ombudsman, read appendix 3 of our guide for advocates (‘Statutory representations (including complaints) procedure’).