Legal update: Accommodating 16- and 17-year-olds

A recent court decision means that section 20 should be used to provide accommodation to children excluded by their family, writes Ed Mitchel

The law lords decision in R(G) v Southwark LBC (May 2009) means that councils have to prepare to accommodate many more homeless 16- and 17-year-olds. However, it is not a foregone conclusion that children’s services will have to accommodate all homeless 16- and 17-year-olds.

Here we will look at when the duty to accommodate does and does not arise.

Section 20 sets out a number of cases where a child in need must be accommodated by a local authority children’s services department.

In G’s case, the law lords held that this section takes precedence over homelessness legislation.

Accordingly, if the section 20 duty is triggered, a child must be accommodated by the children’s services and not referred to the housing department.

What was important about G’s case was that it established that, where a homeless 16- or 17-year-old has been excluded from the family home, s/he is likely to be entitled to section 20 accommodation, including associated support services and, potentially, leaving care services upon reaching adulthood.

Conditions to be met

Previously, many such children have tended to be accommodated by housing services under the homelessness legislation. There are, however, some conditions, all of which must be met in order for the section 20 duty to arise.

● Condition one – the “child” must actually be a child.

This is often an issue with newly arrived young people. It is for the local authority and not the courts to decide whether a person is aged under 18 (M v Lambeth LBC (2008)).

● Condition two – the child must be within the authority’s area.

Mere physical presence in the authority’s area is sufficient. Questions of “ordinary residence” are irrelevant when deciding if the section 20 duty has arisen. But ordinary residence is highly relevant when it comes to recouping costs.

Where a council accommodates a child who is ordinarily resident in another council’s area, it can recover its costs from that other council (section 29(7) of the Children Act).

● Condition three – the child must be a child in need.

Not all homeless children will match the definition of “child in need” in section 17 of the Children Act. In the case of G, the law lords said that this requires “careful assessment”.

But it should be noted that the law lords also said that “it cannot seriously be suggested that a child excluded from home who is sofa surfingmore often sleeping in cars, snatching showers and washing his clothes when he can, is not in need”.

● Condition four – the child must require accommodation.

Usually it will be obvious that a homeless child requires accommodation but not always. The Law Lords said: “There may be cases where the child does have a home to go to, whether on his own or with family or friends, but needs help in getting there, or getting into it, or in having it made habitable or safe.” Such a child could fairly be said not to “require” accommodation.

● Condition five – the accommodation must be required for a particular reason.

A child’s need for accommodation must have arisen for a reason specified in section 20(1), the most common being where a child’s usual carer is prevented from providing him/her with suitable accommodation or care.

Significantly, in G the Law Lords said that a child who has been excluded from the family home is a child whose carer is prevented from providing suitable accommodation.

Ed Mitchell is a solicitor and editor of Social Care Law Today

This article is published in the 16 July issue of Community Care under the heading Law lords widen social servies support to homeless children

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