HOMELESSNESS AND YOUNG PEOPLE

1. HOMELESSNESS AND YOUNG PEOPLE PRESENTATION BY: ANDREW HALL SENIOR SOLICITOR BIRMINGHAM CITY COUNCIL

2. INTRODUCTION HOUSING LITIGATION TEAM: DISREPAIR GENERAL HOUSING AND HOMELESSNESS

3. STATUTORY FRAMEWORK -CHILDREN SECTION 17 (1) CHILDREN ACT 1989 There is a general duty to safeguard and promote the welfare of children in need and so far as is consistent with that duty to promote upbringing of such children by their families-by providing services appropriate to their needs. SECTION 17 (6) CHILDREN ACT 1989 The services provided in the exercise of this general duty may include assistance in kind, and in exceptional circumstances cash. SECTION 116 (1) ADOPTION AND CHILDREN ACT 2002 Includes providing accommodation. �Target� or �framework� duties. R (G) v Barnet LBC [2003] UKHL 57.

4. SECTION 17 (10) CHILDREN ACT 1989 defines a child as being in need if: he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or he is disabled, and �family�, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

5. SECTION 20(1) CHILDREN ACT 1989 says: Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of� (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. SECTION 20(3) CHILDREN ACT 1989 says: Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

6.  SECTION 22 (1) CHILDREN ACT 1989 (1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is� (a) in their care; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which stand referred to their social services committee under the [1970 c. 42.] Local Authority Social Services Act 1970. Excludes children provided with accommodation under section 17 Children Act 1989 but includes children in need accommodated under section 20 Children Act 1989. Triggers continuing duties to �looked after� children sometimes until a child reaches 21.

7. STATUTORY FRAMEWORK- HOUSING 2 ROUTES INTO HOUSING: Part 6 Housing Act 1996 Allocation of accommodation. Part 7 Housing Act 1996 Homelessness provisions. Without going through the whole law of homelessness: Section 184 Housing Act 1996 reason to believe that homeless or threatened with homelessness there is a duty to make enquiries as to whether an applicant is eligible and if a duty is owed what duty. Section 188 Housing Act 1996 if a local housing authority have reason to believe that an applicant may be homeless, may be eligible for assistance and may have a priority need they shall secure accommodation pending a decision as to the duty owed to him.

8. Section 193 Housing Act 1996 �main duty� where the local housing authority are satisfied that an applicant is homeless; eligible for assistance and has a priority need and are not satisfied that he became homeless intentionally they shall secure accommodation is available.

9. COMPARING CHILDREN ACT 1989 and HOUSING ACT 1996 CHILDREN ACT 1989- specific duties are owed to children and their families. HOUSING ACT 1996- not specifically designed to address the housing needs of children. Families with children are relevant but only as part of a wider housing scheme. It is about managing access to everybody to a limited housing stock.

10. HOW DOES THE CHILDREN ACT 1989 INTERACT WITH THE HOUSING ACT 1996 1. Duty of Social Services Department and Housing Department to talk to each other. Section 213 (1) (b) Housing Act 1996 housing department can request a social services department (amongst others) to exercise any of their functions and the social services department shall co-operate in rendering such assistance as is reasonable in the circumstances. Section 27 Children Act 1989 social services can ask housing authorities to assist them, with which housing authorities must comply with the request if compatible with its own statutory or other duties and obligations and does not unduly prejudice the discharge of any of its functions. (Does not apply where one department of a local authority seeks help from another department of the same authority R v Tower Hamlets LBC ex p Byas (1992) 25 HLR 105 CA.)

11. Section 213A Housing Act 1996 (added by Homelessness Act 2002) specific referral and co-operation duty where the local housing authority has reason to believe that a homeless applicant with children maybe: - ineligible for assistance - homeless intentionally - threatened with homelessness intentionally Then the local housing authority must notify social services and social services can request the housing authority to provide advice and assistance as is reasonable in the circumstances.

12. 2. REGULATIONS Regulations 2 and 3 The Homelessness (Priority Need for Accommodation) (England) Order 2002 SI No 2051 A person to whom a local authority owe a duty to provide accommodation under section 20 of the Children Act 1989 (provision of accommodation for children in need) will not have a priority need. Child housed by social services not the housing authority.

13. 3. CASE LAW: R (M) v London Borough of Hammersmith and Fulham [2008] UKHL 14 R (G) v London Borough of Southwark [2009] UKHL 26 Baroness Hale of Richmond gave lead judgments in both cases: (M) case where a 16 year old approached the housing department. Paragraph 4: �In the end, it comes down to a short point of construction: what is meant by �a child who is looked after by a local authority', as defined in section 22(1)of the Children Act 1989? But the clear intention of the legislation is that these children need more than a roof over their heads and that local children's services authorities cannot avoid their responsibilities towards this challenging age group by passing them over to the local housing authorities.�

14. Paragraph 15: �Thus, in the longer term, the Children Act duties supersede the Housing Act duties towards a 16 or 17 year old young person. A local housing authority could not be satisfied that a 16 or 17 year old was in priority need for the purposes of section 193(1) of the 1996 Act if they were satisfied that the local children's authority owed a duty to accommodate that young person under the 1989 Act. But the interim duty in section 188 might arise where the housing authority had �reason to believe' that a 16 or 17 year old was in priority need and did not yet know whether or not the Children Act duties were owed.�

15. What should happen? Paragraph 25: The Homelessness Code of Guidance for Local Authorities Deputy Prime Minister, 2002, para 8.37) which was current at the time was clear: "Responsibility for providing suitable accommodation for a relevant child or a child in need to whom a local authority owes a duty under section 20 of the Children Act 1989 rests with the social services authority. In all cases of uncertainty as to whether a 16 or 17 year old applicant may be a relevant child or a child in need, the housing authority should contact the relevant social services authority. It is recommended that a framework for joint assessment of 16 and 17 year olds is established by housing and social services authorities to facilitate the seamless discharge of duties and appropriate services to this client group." The present Code (Department for Communities and Local Government, 2006, para 10.39) is even stronger. A framework for joint assessment �will need to be established'. But, having contacted the children's services authority, the housing authority should, where necessary, "provide interim accommodation under section 188, pending clarification". (ALSO READ NEW GUIDANCE-MENTIONED LATER)

16. (G) case. This is the reverse situation where a 16 or 17 year old approaches social services to be accommodated under Section 20. QUESTION: �Is it open to that authority instead to arrange for him to be accommodated by the local housing authority under the homelessness provisions of Part 7� ANSWER: NO Paragraph 5: �It comes as something of a surprise that the issue has had to reach this house in the light of the observations in (M)�

17. Paragraph 28 sets out the questions to be asked to determine whether a section 20 duty is owed: (1) Is the applicant a child? (2) Is the applicant a child in need?-requires careful assessment but if homeless most likely to be a child in need. (3) Is he within the local authorities area? (4) Does he appear to the local authority to require accommodation? (5) Is that need the result of: (a) no person with parental responsibility (b) lost or abandoned (c) person caring for him prevented from providing suitable accommodation or care? (6) What are the childs wishes and feelings regarding the provision of accommodation for him? (7) What consideration to be given to those wishes and feelings?

18. THE HOMELESSNESS (PRIORITY NEED FOR ACCOMMODATION) (ENGLAND) ORDER 2002 (SI 2002/2051) What happens when a 17 year old approaching his or her 18th birthday, makes an application for homelessness assistance? Robinson v Hammersmith and Fulham LBC [2006] EWCA Civ 1122 per Lord Justice Waller Paragraph 38 ��that in the case of a 17 year old child, it would not seem to me to be lawful for a local authority to postpone the taking of a decision even for a short period on the basis that by postponing that decision the child will have reached the age of 18 before the decision is taken.�

19. Paragraph 26: �There is no entitlement to take a decision on the basis that she was so nearly 18 that the difference between 18 and 17 should be ignored.� Paragraph 32: �In my view accordingly the decision on review would not have been lawful if it had simply stated that the appellant was now 18 and thus not in priority need. If the original decision was unlawful which for the reasons I have already given it was, the review decision maker should have so held and made a decision that would have restored to the appellant the rights she would have had if the decision had been lawful.�

20. IS THE APPLICANT A CHILD?- Age Assessments R (A) v London Borough of Croydon R (M) v London Borough of Lambeth [2009] UKSC 8 Many references to �a child� throughout the 1989 Act must mean the same thing, that is, a person who is in fact a child. Question of fact-right or wrong answer- although might be difficult to decide. Different type of question from whether a child was �in need.� Local authorities (or UK borders agency in asylum cases) will still have to decide whether a child or not. It is only if that is disputed the court may have to take the decision itself. Does not say how though! Lady Hale - unnecessary to determine in light of above whether a childs entitlement to accommodation under the 1989 Act was a �civil right� most reluctant to hold that ART 6 required the judicialisation of claims to welfare services of this kind. Approach agreed by Lords Scott,Walker,Neuberger.

21. Tomlinson and Others (Appellants) v Birmingham City Council (Respondents) [2010]UKSC 8 Decision that a local housing authority takes under the Housing Act 1996 that it has discharged its duty to an applicant is not a determination of the applicants �civil rights� for the purposes of article 6 (1). Broader decision than that, Lord Hope (with whom Lady Hale and Lord Brown agreed) reasoned that in cases such as this, where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependant upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, article 6 (1) is not engaged.

22. IMPORTANCE OF PROTOCOLS BETWEEN THE HOUSING DEPARTMENT AND SOCIAL SERVICES DEPARTMENT-THE BIRMINGHAM WAY New Guidance issued by Department for Children, Schools and Families and Communities and Local Government �Provision of Accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation.� www.communities.gov.uk/publications/housing/homelesssixteenseventeen

23. ANY QUESTIONS?

24.