This page explains the duties of the local authority to provide accommodation to homeless young people aged 16 or 17.
What does homelessness mean in law?
A person does not have to be living on the streets to be classed as homeless. A child or young person may be considered homeless when their home is not suitable or they do not have the right to stay where they live. In addition, they may be living somewhere that is dangerous or overcrowded, and therefore be considered homeless.
What action can a child or young person aged 16 or 17 years old take when they are faced with homelessness?
The child or young person aged 16 or 17 should contact their Local Authority Children's Services department. The Local Authority may discuss the matter with the child or young person to see what services it could provide to enable them to stay at home.
If this is not possible, the Local Authority may try to find a relative to look after the child or young person or may offer to accommodate the child or young person . The Local Authority also has the power to take the child or young person into care if he/she is at risk of suffering significant harm.
What are the duties of Children's Services to accommodate children and young persons aged 16 or 17?
A Local Authority has a duty to provide accommodation to a child or young person who meets the criteria for being homeless.
The law surrounding the Local Authority's duty to accommodate a child in need was clarified in a landmark case, R (G) v The London Borough of Southwark .
Southwark clarified the test for deciding when the Local Authority would have a duty to accommodate:
1. Is the person a child?
Under the Children Act 1989 a 'child' means any person under the age of 18 years (16 years if married).
2. Is the child in need?
"It cannot seriously be suggested that a child excluded from home who is 'sofa-surfing' in this way, more often sleeping in cars, snatching showers and washing his clothes when he can, is not in need." (Baroness Hale)
3. Is he/she within the Local Authority's area?
In order to satisfy this test, habitual residence is not required but the child or young person should have a physical presence in that Local Authority area. A Local Authority can refer a child or young person to another Authority, where they are more commonly residing but the child or young person must not be a continually passed between Local Authorities whilst they decide where the he/she comes from. It is possible for a child to be within the area of two local authorities at once, for example if he/she resides in one area and attends school in another.
4. Does he/she appear to the Local Authority to require accommodation?
Where the child or young person is homeless or sofa surfing, it is clear that they require accommodation. However where the child or young person can stay with either family or friends, but needs support to settle in or the placement needs to be made safe or habitable then s.20 may not arise.
5. Is that need the result of any of the criteria within s.20(1) Children Act 1989?
A Local Authority will have a duty to accommodate under the Children Act if:
- No-one has Parental Responsibility for the child; or
- The child is lost or abandoned; or
- The person who has been caring for the child is unable to provide suitable care and accommodation; or
- Where the child is 16 or 17 years old and the Local Authority considers the child's welfare would be seriously threatened if it does not provide accommodation.
These rules also apply to asylum seekers.
A child or young person not willing to live with parents alone is not enough to warrant homelessness, but incompatibility and a breakdown in the relationship between parent and child or young person may do.
6. What are the wishes and feelings of the child or young person in respect of accommodation?
A child's wishes and feelings will be taken into account when considering if they can continue to live at home.
7. What consideration (having regard to his/her age and understanding) is duly to be given to those wishes?
8. Does any person with parental responsibility who is willing to provide accommodation for him/her object to the local authority's intervention?
9. If there is an objection, does the person named in a child arrangements order as a person with whom the child is to live agree to the child being looked after by the local authority?
What are the duties of the local authority housing department to provide accommodation to a child or young person aged 16 or 17?
Under the Housing Act 1996 local authority housing departments have a duty to prevent homelessness and provide free advice and assistance to those who are in a situation of homelessness or are at risk of becoming homeless within 28 days. It defines priority need groups whose needs must be assessed, and this includes children.
Government guidance in 2010 confirms that the duties of Children's Services under the Children Act 1989 takes precedence over the duty on local authorities under the Housing Act 1996. This means that if a child or young person aged 16 or 17 seeks help from the local authority as a result of homelessness then their needs should be assessed under section 17 of the Children's Act 1989 and if the child is found to be in need of accommodation then they should be accommodated under section 20 of the same act and become a looked after child.
It is advisable for a child or young person to seek support under section 20 of the Children's Act rather than under the Housing Act 1996. The chart on the next page sets out the pros and cons of being accommodated under both bits of legislation.
If I am faced with homelessness should I seek support from Children's Services or the local authority housing department?
|Section 20 of the Children Act 1989||Housing Act 1996 and/or section 17 of the Children Act 1989|
Young person has a pathway plan including provision for education and career planning as well as leaving care provision.
|Young people get minimal support. There is no requirement for a pathway plan. Young people should participate in education or training but there is no specific support.|
The young person’s accommodation is paid for by Children’s Services up to the age of 18
Young people are responsible for claiming benefits and paying for their accommodation and all other expenses.
Depending on local policy the young person may receive pocket money or special allowances for birthdays and other occasions.
No special allowances for birthdays or other occasions.
Young person can get an advocate for any complaints and representation.
No entitlement to advocacy support.
If the placement breaks down, Children’s Services must find a new placement.
If the placement breaks down and the young person is evicted they might be viewed as intentionally homeless and so no longer eligible for accommodation.
When the young person leaves care at 18 they are a priority for housing support and may continue to receive support until the age of 21 (and in some cases 24).
Once the young person is 18 they are not considered a priority group for housing purposes.
What can I do if the Local Authority decides not to provide accommodation and I am unhappy with their decision?
If Children's Services decide that the child or young person should be accommodated under section 20 then the Local Authority must provide accommodation to the child or young person.
If you feel that the Local Authority has not properly assessed your case, you or an advocate could follow the complaints procedure. Please see our How-to Guide on Complaints against Children's Services and our information page on Advocacy.
The child or young person could seek to instruct a solicitor to investigate the case on their behalf. The solicitor would be able to ascertain the facts to assess whether the Local Authority has a duty to accommodate under section 20. Contact Civil Legal Advice on 0345 345 4345 to see if you qualify for legal aid.
Alternatively the child or young person could seek to challenge the decision of the Local Authority by an application for Judicial Review. Judicial Review is the process whereby the High Court assesses the decision of a public body. Instructing a solicitor is strongly advised if the child or young person is thinking of taking this route as this area of law can be particularly complex.
It is also worth noting that if a Local Authority is assessing whether s.17 (provision of services for children in need) of the Children Act 1989 might be more appropriate than s.20 then the law suggests that the child should be cared for under s.20.
What happens if the Local Authority disputes the age of the young person?
The question of a child's age is a question of fact which will be assessed by Children's Services and determined in judicial review proceedings. It must be proved that it is more likely than not that the person is/is not under 18.
What should I do if I need accommodation in an emergency?
Children's Services has the power to make:
- an emergency placement for up to 24 hours, or
- a temporary placement with a relative or friend
For more information on this see our information page on Duties of Local Authorities.
You should also contact Shelter on 0808 800 4444.