Local authority protocols on homeless young people "fail to comply with the law"

The Law Centres Network (LCN) has called on local authorities to review as a matter of urgency their protocols relating to homeless 16 and 17 year olds to ensure compliance with statute and case law.

After reviewing 138 protocols received from 144 local authorities in England, the LCN said nearly two thirds did not apply s. 20 of the Children’s Act 1989 correctly.

The review also found that 38% of all protocols failed to set out s. 20 correctly. The percentages for London local authorities were higher at 64% and 49% respectively.

In its report the LCN also recommended that local authorities should “make clear within their homelessness and tenancy strategies as well as their allocations policies how they will deal with homeless 16 and 17 year olds and ensure that they allocate adequate resources to meet the assessed needs”.

It added: “Current processes for homeless 16 and 17 year olds lack transparency which causes confusion, increases the likelihood of litigation and wastes resources.”

Protocols are documents meant to set out clearly what happens to a 16 or 17 year old on presentation to either the local authorities’ housing or social services department.

The LCN review was designed to look at whether these protocols were in line with the 1989 Act and statutory guidance issued following the case of R (G) v London Borough of Southwark [2009] UKHL 26.

Other findings from the review included that 27% of all protocols – and 35% in London – did not make it clear that social services should be lead authority.

It also revealed that a significant number of protocols actively directed young people away from social/children’s services and to the housing department or a ‘young person’s homeless person’s unit’.

“There is often no reference as to how the young person’s broader or non-housing needs will be assessed by these teams or the role that social/children’s services should play,” the report said.

Areas of concern with how some protocols are currently drafted included:

• Many protocols applied additional criteria for providing support under s. 20 over and above those set out in the Children Act 1989 or incorrectly stated that the young person must have themselves requested a child in need assessment before it was carried out.
• Many protocols stated that to be fully supported (under s. 20) the young person must have wanted or agreed to be ‘looked after’. “The courts have made it very clear that the s. 20 duty arises if the child requires accommodation for one of the reasons set out in s. 20,” the report said. “The child will, as a matter of law, become a ‘looked after child’. It is not necessary that the local authority determines that the child needs ‘looking after’ in the ordinary sense.”

In relation to the use of bed and breakfast accommodation, the report found that: 7% of local authorities "clearly used B&B to accommodate homeless 16 and 17 year olds as a matter of course"; 52% of all local authorities made no reference to the fact that the guidance prohibited the use of B&B; 25% of all local authorities used B&B to accommodate 16 and 17 year olds only in emergencies; 14% of all local authorities prohibited the use of B&B to accommodate 16 and 17 year olds in any circumstances.

The LCN said: “The use of bed and breakfast should be explicitly prohibited in the protocol and must not be used even in emergency situations.”

The network launched the review in response to anecdotal evidence from its staff that many homeless 16 and 17 year olds were not being correctly assessed, accommodated and provided with the support they needed and were entitled to from the local authority.

Its report said: “The consequences of not meeting these needs can be serious, and whilst most local authorities apply the rationale of using their limited resources to prioritise helping the most vulnerable, the case studies, and recent press reports of young people forced to live in tents and caves, demonstrate there are failings in the systems designed to protect vulnerable young people.

“The case studies show that rather than being caught by the safety net of the local authorities’ intervention, these young people are in fact the ‘lucky’ ones who have been able to access legal advice and remedies to help them. There are countless more young people, in extreme situations, who cannot access advice and help from either local authorities or independent advice agencies.”

The LCN added: “The pressures on local authorities are well understood, but our priority is ensuring that some of the most vulnerable 16 and 17 year olds are protected from harm.”

The network said it recognised that the quality and legality of written protocols might not directly correlate with the quality and legality of support provided to young people. But it added that it was important to establish whether existing protocols were ‘fit for purpose’.

“This is particularly pertinent at a time when there is likely to be an increased need for support from young people as welfare reform changes filter through, whilst at the same time local authority budgets are under pressure.”

It added: “Local authorities’ instinct to ‘gate-keep’ and protect resources should not prevent young people from being properly assessed and supported. Good protocols can provide clear guidance on local authority duties and where the use of individual discretion is appropriate.”