Every child assessed as in need of accommodation should be accommodated under section 20 “by default”, says Children’s Commissioner

A report from the Children’s Commissioner for England, Dame Rachel de Souza, has revealed for the first time that only 40% of children presenting to their local authorities as homeless (excluding unaccompanied children seeking asylum) were accommodated.

In a report, ‘Homeless 16- and 17-year-olds in need of care’ , Dame Rachel de Souza said she was “perhaps even more concerned by the fact that the majority of children accommodated were not taken into care, as statutory guidance is clear they should be – unless they refuse it – with the legal protection that entails”.

Only 39% were taken into care under section 20 of the Children Act while the majority, 61%, were simply accommodated under housing legislation, the report said.

It continued: “Legislation has been introduced that means the settings children in care aged 16 and 17 can be placed in will be regulated and have to meet certain standards. However, this report raises several concerns about those standards.

“Firstly, they will not apply to children who are not in care – and as this report reveals, that is the case for the majority of 16- and 17-year-olds who present as homeless. Secondly, and more fundamentally, the regulations will only legally allow providers to deliver ‘support’, not care. Every child, whatever their age, needs to live somewhere where they can be cared for.”

The report sets out a number of recommendations for the sector, noting that “significant reform” is needed to ensure that all children have their rights to care upheld.

The Children’s Commissioner found that a factor affecting children’s chances of being accommodated under section 20 after  whether or not they received help from an advocate.

Over a third (38%) of children who had accepted an advocate were accommodated under section 20, compared to only 12% for children who were not offered an advocate, the report found.

Another feature was the ‘front door’ a child came through. Those presenting following an initial contact with local authority homeless teams or housing associations were most likely to not be accommodated and, of those who were accommodated, they were housed mostly through section 17 and other housing legislation. Just 8% of these children were accommodated under section 20.

Referrals via social services and via schools or colleges led to the highest percentages of children being given care under section 20 (19% and 16% respectively). The report said this “could indicate that while joint assessments should always take place the initial point of contact does have an impact on what happens next – those going to housing in the first instance were less likely to end up in care than those going to children’s services”.

The report said: “It has been 14 years since the Southwark judgement set out that section 20 of the Children Act should be the primary way for children presenting as homeless to be cared for. It has been 13 years since the first statutory guidance was issued. And yet still today 61% of children are being accommodated under other sections of the Children Act or housing legislation. This is deeply shocking.”

It added: “Children are being presented with care under section 20 or section 17 as a choice. 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.”

The report recommended that every child who a local authority assesses as in need of accommodation should be accommodated under section 20 “by default”.

It said: “If a local authority believes that a child is no longer in need of this support, or a child is refusing to accept accommodation on these grounds, then a care planning review meeting should be held and an independent advocate must be allocated to the child.

“The Independent Reviewing Officer must only ever agree to a child being supported under section 17 and accommodated under housing legislation, if they are satisfied that the child has been fully informed of their housing options and has had access to independent advocacy. In these instances, a child’s placement must be regularly reviewed and children should be reminded of their right to section 20 care. Local authorities must be adequately resourced to fully adopt these processes.”

The report recommended that an ‘opt-out’ model of advocacy must “urgently” be adopted by the Department for Education (DfE), with every child proactively offered an advocate. Local authorities should also record data on how many children presenting as homeless are offered an advocate.

An upcoming report from the Children's Commissioner looking at the availability and quality of advocacy services across England is expected to contain recommendations for how to improve the quality and effectiveness of advocacy services.

The Homeless 16- and 17-year-olds in need of care report said the joint statutory guidance should be updated to reflect its recommended changes.

Further recommendations in the report are made around:

• More ambition being needed for the standards of accommodation for 16- and 17-year-olds
• Ongoing support once children turn 18
• The wider shifts needed across the sector: early help reforms; the need for more specialist foster care for older children.

The report revealed that the Children’s Commissioner is to write to Directors of Children’s Services in England who have reported that they were accommodating over 90% of children under section 17 or other legislation, “to remind them of their duties to children as set out in the joint statutory guidance”.

The report added: “The Children’s Commissioner will remind Directors that local authority duties to a child under section 20 of the Children Act 1989 take precedence over their general duty under section 17 of the Children Act 1989 or their duties under Part 7 of the Housing Act 1996.

“Moreover, the Commissioner will remind Directors of the requirement for children who present as homeless to be offered access to an independent advocate to help them to assess the advantages of the accommodation options available to them.”

The Department for Education has been approached for comment.

Lottie Winson