From pillar to post

New guidance concerning duties owed by children’s services and housing authorities to homeless 16 and 17 year olds was issued in April 2010. This followed several cases which scrutinised the interplay between the duties owed to this group by housing authorities, under Part VII of the Housing Act 1996 (HA 1996), and by social services, under the Children Act 1989 (CA 1989) (see R (M) v Hammersmith and Fulham [2008] UKHL 14 and R (G) v Southwark [2009] UKHL 26).

The problem had been the apparent tendency of both housing and children’s services to shunt young people ‘from pillar to post’. It is not surprising that children’s services preferred housing authorities to provide accommodation under HA 1996: the duty owed under CA 1989 is more onerous than the duty under HA 1996.

It was only in 2002 that housing authorities came under a duty to secure accommodation for homeless 16 and 17 year olds because a new category of priority need was created. These provisions expressly excluded from priority need children who are owed a duty under s20 CA 1989.

Under s17 CA 1989 social services have a power to provide accommodation; a duty arises for a ‘child in need’ under s20 CA 1989. This duty extends beyond mere accommodation to the provision of services to meet their needs (as assessed) and financial assistance. Once the child has been provided with accommodation for 13 weeks under s20, there is a duty to provide assistance on leaving care (until maximum age 24).

The recent cases reflect the conflict between housing and children’s services in accepting responsibility for 16 and 17 year olds. The case of M concerned a 17 year old who had been provided with accommodation by the housing authority, having never been referred to children’s services. The House of Lords stated the housing authority should have considered whether M was owed a duty under s20 CA 1989 and referred for assessment by children’s services.

In the case of G, social services considered they had discharged their duty under s17 CA 1989 by arranging for the housing authority to accommodate him under Part VII HA 1996. Social services claimed G was not a child in need, despite making recommendations that went beyond providing accommodation. It appeared to the court that social services were trying to side step their duty under s20 by using their powers under s17.

The new guidance clarifies who is responsible depending on which service the young person first approaches. If they go first to the housing authority they must immediately refer to children’s services for assessment, without exception. If children’s services accept a duty under s20 and the young person agrees, the housing authority is absolved of responsibility. Where the first approach is to children’s services, they must assess under s20 and, if found to be a child in need, accommodation must be provided. The guidance is explicit that accommodation cannot be provided under s17 if the young person is eligible under s20; children’s services cannot make a choice under which provision of the Children Act to provide accommodation.

Hannah Britz, Hodge Jones & Allen LLP

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