In May there was a House of Lords decision which gave responsibility for homeless 16 and 17 year olds to the Local Authority social care services rather than the housing authorities. This means that the 16/17 year olds will have to become 'looked after' under section 20 of the Children Act 1989.

If these young people are accommodated independently in their own flat rather than in foster care or a community home will they be entitled to JSA / Income Support / Housing Benefit?

The case in question is:

R (on the application of G) v London Borough of Southwark (judgment handed down on 20 May 2009).

UNDER CHILDREN ACT 1989 AND THE HOMELESSNESS LEGISLATION : HOUSE OF LORDS’ JUDGMENT IN G v LB SOUTHWARK
HOMELESS 16 AND 17 YEAR OLDS : INTERRELATIONSHIP BETWEEN DUTIES
The principal legal issue in this case was: what do the criteria in section 20(1) of the Children Act 1989 mean and how, if at all, is their application affected by the other duties of children’s authorities in particular section 17 of the 1989 Act and by the duties of housing authorities under Part 7 of the Housing Act 1996? I should be grateful if you would ensure that a copy of this letter is passed to the chief housing officer of your authority, as soon as possible.

In R (G) v LB Southwark the central issue was: where a child of 16 or 17 who has been thrown out of the family home seeks help from the local children’s services authority, is found to be homeless and a child “in need”, and wishes to be accommodated by them under section 20 of the Children Act 1989, can the children’s services authority instead refer him to the local housing authority for accommodation under the homelessness legislation (Part 7 of the Housing Act 1996)?

The case was heard on appeal from the Court of Appeal, which, by a majority of 2 to 1, had upheld Southwark’s ability to refer the child for assistance under the homelessness legislation even though a duty to provide accommodation had been accepted under section 20(1) of the Children Act 1989. The House of Lords was unanimous in allowing the appeal.

The leading opinion, delivered by Baroness Hale, reaffirmed the House of Lords’ opinions in R(M) v LB Hammersmith and Fulham and sets out the approach that children’s services authorities should take when performing their statutory duties to 16 and 17 year olds who are found to be homeless and “in need”. The Opinions can be found at

http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090520/appg-1.htm

The ruling confirmed the Government’s view that local children’s services authorities should presume that any lone, homeless child should be provided with accommodation under section 20(1) of the Children Act 1989 unless the child is not in the local authority’s judgement (based on an initial screening assessment), a child “in need”. In nearly all cases, the impact of a child being homeless and their parents being unable to provide them with suitable accommodation or care would result in such significant challenges to the child’s welfare that the child will be a child “in need”.

The House of Lords reiterated that the Children Act has primacy over the Housing Act in providing for children in need. The duties of local children’s services authorities to accommodate children in need cannot be circumvented by referring the child to the housing authority, whose duties under Part 7 of the Housing Act 1996 provide a safety net only for those (very few) homeless children who will not meet the criteria for accommodation under section 20 of the 1989 Act. Examples of the small number of homeless 16 and 17 year olds who would have priority need under the homelessness legislation (by virtue of article 3 of the Homelessness (Priority Need for Accommodation) (England) Order 2002) would include those whose need for accommodation did not fall within the circumstances specified in s.20(1) of the 1989 Act - for example, because they had been living independently for some time prior to their homelessness - and those whose need for accommodation fell within s.20 but who did not want to be accommodated under s.20. Such young people must be judged to be competent to make such a decision and have had the benefit of advice about the consequences of making such a decision.

Lord Neuberger’s judgment, which dealt with the interrelationship between the section 20 duty and the duty under Part 7 of the Housing Act 1996, provides that the purpose of the 2002 Order was to fill the lacuna under which there had been no specific duty to secure accommodation for homeless children aged 16 or 17 whose circumstances did not bring them within s.20 of the Children Act. The purpose of the 2002 Order was not to enable a children’s services authority to divert its duty under s.20 to the housing authority, thereby emasculating the assistance to be afforded to children aged 16 or 17 who “require accommodation”.

It will be extremely important that there continues to be close partnership between children’s services authorities and housing authorities (and between children services and housing services within unitary authorities) to support local authority responsibilities under the Children Act for meeting the needs of children in their area.

Baroness Hale referred to section 27 of the Children Act 1989, which empowers a children’s authority to ask other authorities, including any local housing authority, for “help in the exercise of any of their functions” under Part III of the 1989 Act. The requested authority must provide help if it is compatible with their own statutory or other duties and does not unduly prejudice the discharge of their own functions. But, she said, this does not mean that the children’s authority can avoid their responsibilities by “passing the buck” to another authority; rather that they can ask another authority to use its powers to help them discharge theirs.

In answer to the original question, I think not. They are either looked after, or will have been, which means, in Children (Leaving Care) Act terms, they are either 'relevant' or 'eligible' and in either case are excluded from entitlement to IS, JSA and HB by S.6, Children (Leaving Care) Act.

This Section does not seem to have been amended to cover ESA, probably deliberately since people incapable of work (and single parents) were exceptions to the S.6 exclusion anyway, so all ESA claimants ought to be excepted.

So unless they have a child or or are sick/disabled in some way, the local Leaving Care Team will have to fund them until 18.

I imagine this was part of the significance of the HL judgment which makes it clear that a 16-17 year old who is rehoused is, even if the accommodation is found by the LA housing section, Children Act accommodated - it wouldn't otherwise matter which power the LA were acting under when they found the young person accommodation.

Richard Atkinson

Thanks for the replies.

I agree that 'relevant' or 'eligible' young people would usually have no entitlement. What are your thoughts about entitlement to benefits for those 16 or 17 year olds who have only just been taken into care and haven't served their 13 weeks yet? They would be neither 'relevant' nor 'eligible' yet.

Sorry, did not notice this post.
If the requirements of s.20 are met, the child should be accommodated under s.20 pending a Children Act assessment. I would argue that even if s.20(1) is not met (parent/ carer unable/ unwilling to provide suitable accommodation or care), if the child requires accommodation, s.20(3) will be met (for those children who will not go home but welfare likely to be seriously prejudiced if not provided with accommodation).
The 13 weeks and becoming a relevant child has nothing to do with whether a child is looked after. A child can be looked after, and children often are while family members are being sought etc, for less than 13 weeks. The duties to support kick in straight away, and includes a LAC (Looked After Child) review before an independent chair etc.

The HL decided that MOST homeless 16/17 year olds should be looked after under s.20 Children Act, as opposed to assisted with accommodation under the general duty in s.17 Children Act. The reason is that these children often need more than a roof over their heads.
As a looked after child, social services has a duty to support the child, financially as well as in other ways. Social services should pay for the accommodation (although housing benefit is sometimes claimed), pay for the bills and other living expenses. Social services will also be expected to pay for associated education costs and clothing allowances etc, as they are in loco parentis, they are looking after the child as if they were the parent. Benefits are not therefore necessary.
This is often very beneficial for youngsters estranged from their families, especially if they are still in education. Also, it is difficult for them to maintain JSA and cope without additional support.
A child who is looked after for a minimum of 13 weeks (over the age of 14 and including any period over age 16) becomes a relevant child, and once over 18 a former relevant child. Social services then has a duty to continue to assist the child until 21, and 24 if in education.
Social services should no longer send 16/17 year olds excluded from the family home to obtain homeless housing assistance, unless they specifically do not want to be looked after. They do not need to be looked after in foster care or children's home, but can be placed in semi-independent accommodation.
If a 16/17 year old has been living independently for a period of time, they may still be assisted under s.17 Children Act and would then not be 'looked after'. However, I would be wary of advising any other than the most together and independently minded not to be looked after, as then all social services assistance will end when they turn 18.

Sorry to pick up on this some time after the discussion above but I am looking at this problem now and, having looked at it and read the above, I remain a little puzzled.

When I looked at it initially I came to the same conclusion as Linda above but I don't have a very deep understanding of the Children Act side of things.

As we know, entitlement to IS, ibJSA and HB is precluded by section 6 of the Children (Leaving Care) Act for 'eligible' and 'relevant' children.

dcarlin seems to be saying that the obligation to accommodate under section 20 in itself means that young people who become looked after are not eligible to claim benefits as the local authority has that responsibility. I can see the local authority's responsibility but I am not sure how this necessarily deprives such young people from claiming the relevant benefits. Although, if the local authority took reponsibity for the accommodation that would mean no rent liability for the claimant and if the local authority is providing financial support under section 23 then this support would be treated as income for IS/ibJSA purposes.

As Richard says, young people leaving care can usually claim IS/ibJSA if a lone parent or come under some categories of sick/disability. Does this apply to these young people? I wonder because entitlement is based on section 6 not applying in those circumstances - Reg 2 Children (Leaving Care) Social Security Benefits regs. If dcarlin is right then Section 6 is not applicable in any case.

If lone parents etc are entitled, as section 6 treated as not applying to them, then this suggests section 6 applies to the others and takes us back to Linda's initial 13 week period. It all seems a little circular.

I may well be all over the place on this and I would be really grateful if someone, or indeed more, can put me straight and/or let me know what is happening in practice. I'll have a look here again after I've had a lie down!

Tony