Accommodation and vulnerable 16- and 17-year-olds

Ed Mitchell (pictured) looks at the implications of a case of a homeless 17-year-old whose application for leaving care services was turned down

Good accommodation and support is essential if a vulnerable homeless 16- or 17-year-old is to have a reasonable chance of a decent adulthood. But, the better the service, the more expensive it tends to be. This is where problems set in. Recently, the Law Lords, in M v Hammersmith & Fulham LBC recognised that there are incentives for children’s services improperly to withhold support from this client group in order to protect budgets.

What should happen when a homeless 16- or 17-year-old approaches housing services?

Accommodation must be provided under homelessness legislation unless the child is entitled to accommodation provided by a children’s services department (CSD) under Section 20 of the Children Act 1989. Only children who are ‘in need’ are entitled and only then in certain cases, for example, where parents are prevented from caring for them.

Housing services must, while considering if a child is entitled under s.20, provide interim accommodation. Protocols for joint working with CSD should be followed to ensure that children get the accommodation and services to which they are entitled.

Which type of accommodation is best for the child?

Generally, s.20 accommodation is more suitable. Better support services are likely and it can also trigger a subsequent entitlement to leaving care services on the basis that the person used to be a ‘looked after’ child.

Why can the system break down?

Housing officials might avoid the difficult issue of whether a CSD is responsible by simply putting a child in a hostel and doing little else. Alternatively, a CSD might improperly deny any s.20 obligation so that long-term responsibility will remain with housing and expensive leaving care services be avoided.

What happened in this case?

A homeless 17-year-old, M, whose seriously ill mother had thrown her out, approached Hammersmith Council’s housing department. It did not refer her to the CSD. Instead, she was given a place in a B&B.

Subsequently, M was given a custodial sentence. Upon release, she tried to obtain leaving care services. To qualify, she had to show that the B&B had actually been s.20 accommodation.

Was M entitled to leaving care services?

The Law Lords said no. Even though the housing department should have referred M to the CSD, it would be re-writing history to hold that M was accommodated under s.20. This was despite the fact that, if a referral had been made, the Law Lords suggested that M would have been entitled to s.20 accommodation.

Haven’t other cases forced social services to provide leaving care services in situations like this?

There have been cases where CSD were deemed to have acted under s.20. For example, one claimed that a room in shared housing was provided as a general children’s service, rather than under s.20. This was rejected by the courts with the result that the young person obtained leaving care services.

What distinguishes M’s case, though, is that the CSD did nothing for her at all. As a result, it would, said the Law Lords, be impossible to hold that the CSD had accommodated her under s.20.

What can people like M do next?

M has now missed the boat for leaving care services. She can never be entitled to them because she was not ‘looked after’ by a CSD as a child. But her CSD could, under its general powers, provide services akin to leaving care services. She could approach her authority and request that they do just that.

If it refuses, M may find that the local government ombudsman is receptive to a complaint of maladministration. Generally, the ombudsman takes a dim view of councils which take advantage of their own failings.

Further information

Decision in detail

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