Councils breaching guidance by not taking homeless teenagers into care, suggests Children’s Commissioner

Councils appear to be breaching statutory guidance by not taking homeless 16- and 17-year-olds into care when they should, the Children’s Commissioner for England has concluded.

Just 40% of young people presenting to English councils as homeless in 2022-23 – excluding unaccompanied asylum seekers – were accommodated,

Of these, 39% were taken into care under section 20 of the Children Act 1989, with the rest accommodated under section 17 or homelessness legislation, according to research by commissioner Rachel de Souza’s office.

This is despite statutory guidance – which authorities must follow unless there are exceptional reasons – stating that homeless 16- and 17-year-olds should be taken into care unless they refuse or are deemed not to be children in need.

“This is deeply shocking,” said de Souza’s report. “A 16- or 17-year-old should not be considered ‘homeless’ in the way that an adult is – if they cannot live at home, then
they need to be in the care of the local authority who can act as their corporate parent.”

Section 20 duty ‘takes precedence’

Councils have a duty under section 20 to accommodate children in need who have no one with parental responsibility for them, who have been abandoned or whose parents cannot do so.

At the same time, they have a power to accommodate a child in need under section 17 of the Children Act, while the Housing Act 1996 requires councils to provide accommodation for 16- and 17-year-olds presenting as homeless, unless they are a care leaver or owed the section 20.

The statutory guidance on accommodating homeless 16- and 17-year-olds, last updated in 2018, is based on case law, particularly the House of Lords’ ruling in R (G) v Southwark [2009] (the Southwark judgment).

The judgment stated that, where a young person was owed a duty under section 20, this took precedence over both the section 17 power and the Housing Act duty.

What homelessness guidance says

According to the guidance, there are only two circumstances in which the section 20 does not apply to a homeless 16- or 17-year-old: if they are deemed not to be a child in need or they refuse to be taken into care.

The Children Act defines children in need as those who are disabled or whose health or development will be significantly impaired, or not be maintained to a reasonable standard, without the provision of services.

The guidance says that, while a child in need assessment is a matter of professional judgment by a social worker, a young person excluded from home is “extremely likely” to be a child in need.

It also states that, where a young person refuses accommodation under section 20, children’s services must be satisfied that he or she has been provided with all relevant information and is competent to make the decision, and that they do not need to take additional safeguarding action.

In relation to the section 17 power to accommodate, the guidance says there are “very limited circumstances” in which this can be used for a homeless 16 or 17-year-old in need in the absence of their family.

This would be when they have refused section 20 accommodation and are not owed the Housing Act duty, for example, if they have refused suitable accommodation or made themselves intentionally homeless.

Minority of children taken into care

The commissioner asked for data from English councils about 16- and 17-year-olds who presented as homeless or were threatened with homelessness in 2022-23, receiving usable responses from 136 of the 153 authorities. Those who presented with their families were excluded.

Most of the unaccompanied asylum-seeking young people concerned (1,004 out of 1,089) were accommodated under section 20.

The commissioner found 4,879 non asylum-seeking children presented as homeless, in most cases because of family breakdown (47%) or because family or friends were no longer willing to house them (26%).

Of this group, just 1,960 out of 4,879 (40%) were accommodated, 1,979 (41%) were not and authorities could not specify what happened to the remaining 941 (19%).

Among those who were not accommodated, 45% (897) were not deemed to be homeless and a further 45% (893) supported to return to their previous living arrangements.

Of those who were housed, 760 were taken into care under section 20 with the rest (1,200) accommodated under section 17 or housing legislation.

Variations in outcomes

The research identified significant variations in outcomes based on locality, referral route and age. Some areas appeared to operate a blanket policy of accommodating children under section 17 or housing legislation, rather than section 20.

And while 8% of children who presented following an initial contact with a council housing or homelessness team were accommodated under section 20, this was true of 19% of those whose referrals came via social services.

Also, sixteen-year-olds were more likely to be accommodated under section 20 than 17-year-olds (20% as opposed to 13%).

The research team also spoke to 15 young people with experience of presenting as homeless aged 16 and 17, as well as professionals and charities who support young people experiencing homelessness.

‘Biased Information

It heard that information presented to children was biased towards them choosing to be accommodated under section 17, rather than section 20, for example, by indicating they would have less freedom and more contact with social workers under the latter.

“Children are being presented with care under section 20 or section 17 as a choice,” the report said.

“It is hard to see how a child could ever make a genuinely informed decision about the difference between section 20 or section 17, with no experience of either and at a deeply stressful moment in their lives.”

Commissioner’s recommendations

De Souza’s key recommendation was for every child who presents to a local authority as homeless to be accommodated under section 20, with a care planning review meeting held if the child refused or the local authority believed they no longer needed this support.

Independent reviewing officers should then only agree to a young person not being accommodated under section 20 if they were satisfied that the child had been fully informed of their housing options and been given access to independent advocacy.

The research found that councils could not specify whether a child had been offered an advocate in 47% of cases, despite the statutory guidance saying this should be provided.

The commissioner recommended that the Department for Education “urgently” adopt an opt-out system of advocacy so that every child received an advocate by default.

The report also called for the DfE to produce guidance for councils to support social workers in presenting information to children about the implications of refusing accommodation under section 20, as well as child-friendly advice for children about their rights.

‘Section 17 may be most appropriate option’

Responding to the report for the Association of Directors of Children’s Services, vice president Andy Smith said: “We take our duty to look after vulnerable young people seriously, for some entry into care via section 20 is the most appropriate option, for others, accommodation and support that requires a less intrusive nature can be provided via section 17 of the Children Act 1989 and also be the most appropriate option to enable young people to remain in their local communities.

“Regardless of the legal status, young people are always involved in decisions that affect them, and arrangements are reviewed in light of the ongoing needs, views and progress young people make, and may change over time.”

Rising number of young people in care

The report comes with the number of children in care having grown for a 15th consecutive year, and the numbers aged 16 and over growing at a faster rate than the care population as a whole in 2022-23 (by 9%, as opposed to 2%).

This appears to have been driven by growth in the number of unaccompanied children, who are largely 16 and over and whose numbers increased by 29% in 2022-23.

It was also accompanied by a 20% rise in the number of what were then unregulated placements in semi-independent or independent accommodation, which had been reserved for 16- and 17-year-old children in care since 2021.

As of last month, councils have been barred from placing young people in independent settings and must only use semi-independent provision registered with Ofsted as supported accommodation.

Debate over impact of placement regulation

Charities, as well as the Children’s Commissioner, have criticised the reform for not requiring supported accommodation to provide ‘care’ to young people, in contrast with the requirements for children’s homes.

However, councils have warned that the introduction of regulation may exacerbate the existing shortage of placements.

In its annual report, issued last week, Ofsted said it had registered, or had applications from, 680 providers, responsible for 5,930 supported accommodation settings, as of the deadline of 28 October 2023.

It also received 43% more applications to register children’s homes in 2022-23 compared with 2021-22 (630, up from 440), and suggested some of these may have been from former semi-independent settings.