When the local authority has established that the child is in need, it has the power to provide a wide range of services in order to meet assessed needs under section 17 of the Children Act 1989. The local authority is not under a duty to meet all formally assessed needs; section 17 is a target duty and may take into account its resources in determining which needs are to be met, but such a decision must be reached rationally and the local authority must act reasonably.
Section 17(6) of the Children Act 1989 allows a local authority to provide accommodation and financial support to meet a child’s needs:
“The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or in cash.”
Section 17(3) permits a local authority to provide assistance to a child’s family:
“Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare.”
The legislation and statutory guidance does not state exactly what type of accommodation and financial support would need to be provided when this is an assessed need. However, the courts have examined the lawfulness of how local authorities have determined what support is provided to a family, which has established some basic principles that local authorities must adhere to. The courts have been very clear that such provision is always a response to meeting the assessed needs of a child.
There is much variation in practice in terms of the type of accommodation that is provided to families under section 17 of the Children Act 1989. Due to housing demand, cost and supply, many local authorities are presented with very significant challenges and costs in sourcing suitable temporary accommodation. Accommodation can therefore range from private tenancies, where the local authority may have made arrangements with specific providers to Bed and Breakfast (B&B) or hotel rooms. Some voluntary sector agencies provide housing units with an additional support element.
There is case law that relates to the suitability of temporary accommodation provided to families who are owed a homelessness duty under the Housing Act 1996 and Homelessness Code of Guidance 2006 provides statutory guidance on the suitability of certain types of accommodation in the context of discharging homelessness duties under the Housing Act 1996. However, the Court of Appeal recently ruled that when the local authority is providing accommodation to meet the needs of a child under section 17, guidance relating to other statutory schemes of support does not need to be adhered to.
There is one reported judgment that has considered the suitability of temporary accommodation provided to families under section 17, the case of C, T, M & U v LB Southwark (2014), which was brought by a mother and four children who were supported by the local authority for two and a half years, with the mother’s partner joining them after one year. The High Court determined that the local authority had acted lawfully in providing B&B accommodation for eight months and by providing accommodation in a different area of the UK without a specific assessment evaluating the impact of this. The court’s findings are set out below. The family’s subsequent appeal challenging the High Court’s decision to the Court of Appeal did not raise grounds in relation to the local authority’s provision of accommodation.
7.1.1 Bed and breakfast accommodation
In C, T, M & U v LB Southwark (2014), the family were placed in Bed and Breakfast (B&B) accommodation from June 2012 to January 2013. The Judge recognised that accommodating the family in B&B accommodation for longer than a few weeks was inappropriate and was bound to have some adverse impact on the family. However, when considering whether this amounted to a breach of the local authority’s duty, the facts that the accommodation was in the family’s preferred area, facilitated family life, enabled the children to continue to attend their existing school and maintain social networks were all relevant considerations, as was the chronic shortage of suitable rental accommodation available, and that offers of alternative accommodation were made to the mother but were not considered by her to be ideal. The Judge concluded that the local authority was not required to follow the Homelessness Code of Guidance 2002, which states that B&B accommodation is not suitable for families, must be used only as a last resort and for no more than six weeks. The Judge found that even if the local authority had failed to follow the guidance, placing this family in B&B for the time that it did would not have been unlawful or unreasonable given the ‘peculiar circumstances’ of this situation.
7.1.2 Placing families in another local authority area
The Court of Appeal in the case of C, T, M & U v LB Southwark (2016) has been very clear that local authorities are not required to follow statutory guidance relating to other statutory responses to homelessness, but must ensure that in making a decision regarding providing services to meet an assessed need, due consideration must be given to the need to safeguard and promote the welfare of children.
The High Court had considered whether the local authority’s decision to provide the family of C, T, M & U with accommodation in another region of the UK (Rochdale). The Judge found that no specific assessment was necessary given that the mother had agreed to the relocation and that the local authority had undertaken periodic assessments, which focused on the wellbeing and needs of the children, with the overwhelming need being for suitably large accommodation close to suitable education provision. The Judge found that the home provided in Rochdale met the family’s needs very well. This finding was not challenged by the family at the Court of Appeal.
It is useful to also examine the approach of the courts and guidance that local authorities are required to follow when exercising homelessness duties under Part 7 of the Housing Act 1996:
“Where it is not possible to secure accommodation within district and an authority has secured accommodation outside their district, the authority is required to take into account the distance of that accommodation from the district of the authority. Where accommodation which is otherwise suitable and affordable is available nearer to the authority’s district than the accommodation which it has secured, the accommodation which it has secured is not likely to be suitable unless the authority has a justifiable reason or the applicant has specified a preference.
“Generally, where possible, authorities should try to secure accommodation that is as close as possible to where an applicant was previously living. Securing accommodation for an applicant in a different location can cause difficulties for some applicants. Local authorities are required to take into account the significance of any disruption with specific regard to employment, caring responsibilities or education of the applicant or members of their household. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support.”
Additionally, section 11 of the Children Act 2004 requires local authorities in England to ensure that they have regard ‘to the need to safeguard and promote the welfare of children’ when discharging a homelessness duty.
In Nzolameso v City of Westminster (2015), the Supreme Court examined the lawfulness of Westminster’s decision to discharge its homelessness duty when the family refused to take up an offer of accommodation in a different area (Milton Keynes) on the grounds that it was too far from the children’s schools, the mother did not know anyone there but had friends who provided childcare in Westminster, and she had lived in the Westminster for a long time. The Supreme Court allowed the appeal, stressing that local authorities have a duty to accommodate applicants within their own district so far as ‘reasonably practicable’ and where it is not reasonably practicable to accommodate in their own district authorities must, where possible, try to place the family as close to possible where they had previously been living. In determining suitability of accommodation, the local authority must have regard to the need to safeguard and promote the welfare of the children in the household and identify and have regard to the principal needs of the children, both individually and collectively.
In comparing this to the Judge’s findings in C, T, M & U v LB Southwark (2014), it is clear that the local authority must ensure that the needs of the child are clearly identified, documented and considered when deciding whether to provide accommodation out of area. Local authorities will also need to consider the practicalities and resource implications of case managing a family placed in another region of the UK, for example, when undertaking reviews, responding to a change of circumstances and effectively progressing immigration matters or otherwise resolving the case.
Local authorities placing outside of their area retain responsibility for funding accommodation and financial support under section 17 until that duty is no longer owed. However, placing families in different areas leads to wider service pressures on the receiving authority. The placing authority should notify the receiving authority when a child in need is being placed in that area. Local authorities using NRPF Connect will be able to identify when a family is being supported by another authority using the system.
7.1.3 Right to rent checks
The government introduced right to rent checks in England on 1 February 2016, which prevent private landlords from renting a property to a person who does not have any immigration permission to stay in the UK. Landlords are required to conduct immigration status checks and this requirement also applies to people sub-letting properties and people who are accommodating paying lodgers. The right to rent scheme has operated in the West Midlands (Birmingham, Wolverhampton, Dudley, Walsall and Sandwell) since 1 December 2014.
It is common practice for local authorities to provide families supported under section 17 Children Act 1989 with property in the private rented sector and this is not prevented by the right to rent scheme, as such accommodation is exempt under paragraph 7 of Schedule 3 of the Immigration Act 2014, as explained at paragraph 3.7 of the Home Office Code of practice on illegal immigrants and private rented accommodation:
“Residential tenancy agreements which grant a right of occupation in any circumstances where the accommodation is arranged by a local authority which is acting in response to a statutory duty owed to an individual, or which is exercising a relevant power with the intention of providing accommodation to a person who is homeless, or who is threatened with homelessness, is exempt from the scheme. This includes instances where the occupier is to be placed into private rented property by the local authority.
In such circumstances, landlords should ask for written confirmation from the local authority that the authority is acting in response to a statutory duty and keep this on file.”
Residential tenancies that grant a right of occupation in a hostel or refuge are also exempt from the right to rent checks when the hostel or refuge is managed by a social landlord, voluntary organisation or charity, or which is not operated on a commercial basis and whose operating costs are provided either wholly or in part by a government department or agency or a local authority.
7.2 Financial support (subsistence)
The courts have examined the rationale applied by local authorities in determining the amounts of financial support (subsistence) paid to meet the needs of children under section 17 Children Act 1989.
The leading case is that of C, T, M & U v LB Southwark (2016), in which a mother and four children were supported under section 17 for two and a half years, with the mother’s partner joining the family after one year. During this time the local authority undertook six needs assessments, reviewing the subsistence payments six times. The local authority did not have a policy regarding payments but for the last few months had been checking rates against those provided by the Home Office to refused asylum seekers. The Court of Appeal considered whether the local authority had an unlawful policy or practice of setting financial support at the level of child benefit or at the level of Home Office payments which are made to asylum seekers or refused asylum seekers. The Court dismissed the appeal, finding that the local authority had not used the levels of child benefit and asylum support as a starting point when determining how much financial support to provide to the family, although had regard for these rates and determined the amount of support on the basis of the needs assessments, providing for any changes in the family’s circumstances.
The Court of Appeal is very clear that section 17 is a target duty and decisions regarding the provision of support must be made to meet a child’s assessed need.
In the cases of PO v LB Newham and Mensah v Salford City Council, the High Court found that it was lawful to have a policy standardising rates, so long as there is flexibility to meet arising or additional needs. LB Newham’s policy of setting rates against Child Benefit payments was found to be unlawful. Salford City Council was found to have acted lawfully in providing payments in line with Home Office section 4 support for refused asylum seekers and additional items of furniture and payments to meet specific needs.
In C, T, M & U v LB Southwark (2016), the Court of Appeal goes further in specifying the extent to which local authorities should have regard to standard payments and rates set by another public body, and local authorities must ensure that they adhere to these principles:
- An assessment must be carried out to determine the needs of a particular child, in line with statutory guidance and with proper consideration of the best interests of the child.
- Support for families with NRPF should not be fixed to set rates or other forms of statutory support without any scope for flexibility to ensure the needs of an individual child are met.
- Local authorities must undertake a rational and consistent approach to decision making, which may involve cross-checking with internal guidance or other statutory support schemes so long as this does not constrain the local authority’s obligation to have regard to the impact of any decision on a child’s welfare.
The Court of Appeal has confirmed that to avoid unjustifiable and unfair differences in providing subsistence to families, the local authority may cross check payments against internal guidance. Local authorities that do not have any internal guidance would need to consider what staffing resources would be required to undertake a ‘shopping list’ exercise, such as LB Southwark did, whether this is practical and proportionate to administer and how a consistent approach to decision making would be undertaken by practitioners.
If following internal guidance, local authorities need to be mindful of the findings made by the High Court in PO v LB Newham relating the amount of support provided:
- Child benefit is not designed to meet the subsistence needs of children so it is not rational or lawful to set standard rates in line with these amounts.
- When it is in the child’s best interests for the family to remain together, payments for the parents should be made in addition to those considered appropriate to meet the needs of the children, but are not required to exceed what is necessary to avoid a breach of the parent’s human rights.
- Lack of complaint from a family does not mean that the local authority can be satisfied that it is making payments appropriate to meet the child’s needs.
In Mensah v Salford City Council, the High Court found that support for refused asylum seekers under section 4 Immigration and Asylum Act 1999 is designed to provide for food and toiletries only, therefore any policy aligning subsistence payments with these rates must allow for additional assistance to be provided in order to meet the child’s needs . The Court of Appeal in C, T, M & U v LB Southwark did not make a finding on that decision but observed that:
“ …a level of support considered adequate simply to avoid destitution in the case of a failed asylum-seeker is unlikely to be sufficient to safeguard and promote the welfare of a child in need and by extension the essential needs of the parent on whom the child depends for care. Ultimately what matters is whether the assessment when completed adequately recognises the needs of the particular child.”
For more information see our factsheet:
7.3 Additional family members
Local authorities may be asked to provide section 17 support for additional family members, such as an adult in the household who is not the child’s parent, or for a child who does not permanently reside in the household. The courts have considered each of these situations.
In the case of R(MK) v Barking & Dagenham LBC (2013), a mother and her two children were supported by the local authority under section 17 of the Children Act 1989.The mother’s adult niece, MK, had been living with the family but was then prevented from doing so by the local authority. MK entered the UK illegally as a child and had subsequently been granted temporary admission and had an appeal pending against a decision to remove her.
It was found by the court that it would be improper use of section 17 to provide accommodation and cash support to MK as this power can only be exercised for the benefit of children. Additionally, the local authority had already concluded, within its assessments, that MK’s residence with the family was not necessary to promote or safeguard the welfare of the two children. The court also found that Parliament did not intend for section 1 of the Localism Act 2011 or section 17 to be used to circumvent statutory restrictions prohibiting the provision of all kinds of benefits to people without any immigration permission. In this case, the statutory provision of support available to MK was section 4 of the Immigration and Asylum Act 1999, administered by the Home Office.
In the interim relief application for accommodation of R (KO) v LB Lambeth (2013), the court considered whether accommodation must be provided to a child who did not reside with the household the local authority was supporting under section 17.
The local authority had provided hostel accommodation to a mother and her baby, who had been assessed as being a child in need. The mother’s elder son had been living with his half-sister for the previous four and a half years. Two years prior to the hearing the mother obtained an order prohibiting her elder son’s father from taking him to Nigeria, and during those proceedings contact was ordered to take place with the mother. The mother had failed to obtain an order permitting overnight contact because her current accommodation had been assessed as unsuitable for him to stay in, so the arrangement could not be tested.
The Court found that the likelihood of the elder child being provided with accommodation to enable contact following a section 17 child in need assessment would be low because:
- there was no positive evidence that the elder son’s health or development is likely to be significantly impaired or further impaired without the provision of section 17 services; and
- evidence of a strong bond between the elder child and his mother fell a long way short of evidence that the baby needed to live with his brother.
The Court also found that Article 8 does not give a freestanding right or claim for accommodation for the whole family. The Judge found that the public interest weighed heavily against granting interim relief, there being many other families in similar, if not worse positions than this family, but permission was granted for the judicial review to be heard and expedited.