Leaving care services depend on what section is used

Ed Mitchell considers the “leaving care gap” that unaccompanied asylum-seeking children may find themselves falling into

What is the issue:
Leaving care services for former asylum-seeking children

What is the case:
H & Others v Wandsworth LBC & Others

What was the case about?
The case was about identifying the power under which unaccompanied asylum-seeking children (UASC) are accommodated.

But what was the real issue?
The real issue was access to leaving care services, the gateway to which is “looked after” status for at least 13 weeks as a 16- or 17-year -old. The claimants in this case argued that they were “looked after” because they were accommodated under section 20 of the Children Act 1989 (CA 89). Section 20 sets out cases in which local authorities must accommodate children in need for example where accommodation is required because the child’s previous carer is prevented from providing care.

What is beneficial about leaving care services?
Upon reaching adulthood, a former UASC who is entitled to such services, and whose asylum claim is unresolved, ought not to be “dispersed” away from London. In addition, better support can be expected under the leaving care route than is available generally to asylum seekers.

How did the case arise?
The three claimants arrived in the UK aged 16. Two had no contacts in the UK and were provided with accommodation by London authorities, but it was merely a room in a shared house. The case of the third was slightly different. She had friends in London who rented private accommodation. Her authority provided her with financial assistance (a deposit) so that she could also rent a room (using housing benefit) with her friends.

The local authorities argued that the claimants had not been accommodated under Section 20. They argued that they had merely received a service under Section 17 (the general duty to safeguard and promote welfare of children in need) and, as a result, did not qualify for leaving care services. A judicial review claim was made.

What did the Court decide?
The High Court held that the first two claimants were accommodated under Section 20, despite the accommodation being very basic. This duty to accommodate was triggered because they were children in need whose usual carers were no longer able to care for them. They had been provided with accommodation and so it must have been provided under Section 20. The result was that they had been “looked after” and, as a result, could access leaving care services.

The third claimant, however, was less fortunate. The Court held that she had not been provided with accommodation under Section 20 and, as a result, had not been looked after. She had merely been assisted to obtain her own accommodation. This meant she did not qualify for leaving care services.

Does this mean all UASCs will be entitled to leaving care services?
No, it is not that straightforward. As the third case shows, a person merely provided with Section 17 assistance in finding accommodation cannot qualify for leaving care services. It is also theoretically possible that a UASC could refuse Section 20 accommodation and instead seek Section 17 help although this would be unwise and UASCs should be advised that generally it is better to receive Section 20 accommodation.

Is there a danger that some UASCs will be tricked into accepting Section 17 accommodation?
Of course there is a danger of that happening but, under the law, it should not. A decision to provide accommodation (or accommodation-related services) under Section 17, rather than Section 20, should be needs-led rather than led by a desire to avoid the costs of providing leaving care services in the future.

Read the full case report

Ed Mitchell is a solicitor, editor of Social Care Law Today, and Community Care’s legal expert

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