Why s17
There are two main reasons why a advocate working with homeless families needs to know the basics of s17 Children Act and assistance offered therein.
1) If your client is made intentionally homeless, a referral HAS to be made to the local Social Service as part of the Code of Guidance (tactic: as my Local Authority likes to remind me the Authority of the moment – i.e. where the family is physically when about to be street homeless is the Authority they should approach)
2) If the client is outside of scope of the main Part 7 Duty due to immigration status, home office appeal pending, EU worker not exercising treaty rights etc. (eligibility is a tricky minefield with exemption and buts and ifs and until we get a guide up we recommend the mental prowess of Mr Chataway)
A little about s17
Local authorities exercising social services functions have powers and duties in respect of children in their area under Part III of the Children Act 1989. Unless otherwise stated, references to statutory provisions are to the 1989 Act.
Relevant guidance has been given to authorities by the Department of Health in Framework for the Assessment of Children in Need and their Families: March 2000 (“the assessment guidance”) and in Guidance on Accommodating Children in Need and their Families: LAC(2003)13 (“the accommodation guidance”).
By s.17(1), authorities are subject to a general duty to safeguard and promote the welfare of children within their area who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children’s needs.
By s.17(10), a “child in need” is a child, inter alia:
(1) who 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 by an authority of services under Part III; and
(2) whose health or development is likely to be significantly impaired without such services.
In R (G) v Barnet LBC [2003] UKHL 57; [2004] 2 AC 208, it was held that the general duty imposed by s.17 is owed by a local authority to all children who are in general need within their area; it is a statement of general principle which sets out the broad aims which the authority must bear in mind when it is performing the other duties in Pt III and the specific duties in Pt I of Sch 2; a child in need is eligible for the provision of those services, but has no absolute right to them and the general duty imposed by s.17(1) does not crystallise into a specific, enforceable duty when an authority decide that a particular child is in need of certain services: per Lord Hope of Craighead at [85]-[86], [91], [94], per Lord Millett at [106], and per Lord Scott of Foscote at [135].
It is well established that a child without accommodation can be a child in need and that the provision of accommodation can be a service to meet that need: R v NorthavonDCexp Smith [1994] 2 AC 402, HL; R (G) v Barnet and others (above).
After the assessment has been carried out services to meet the child’s identified needs must be provided.
In order to facilitate the discharge of the general duty under s.17, authorities may provide services including providing accommodation, giving assistance in kind, or, in exceptional circumstances, cash: s.17(6).
Any service 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: s.17(3).
In deciding what services are appropriate to an individual child, authorities have a considerable latitude, the extent of which depends on the circumstances, including the nature of the service in question, the nature and extent of the needs of the child and the cost of providing the service: R (G) v Barnet LBC [2003] UKHL 57; [2004] 2 AC 208, per Lord Nicholls of Birkenhead at [30] and per Lord Steyn at [64].
R (Clue) v Birmingham City Council [2011], the Court held that a local authority may not refuse to provide support and accommodation to an individual with no recourse to public funds who has an outstanding application for leave to remain based on human rights grounds that was not obviously hopeless or abusive.
Tactics
The normal tactic here is to use s17 assistance to buy time for your client so they can look for private rented accommodation (Tip: ensure the client keeps a list of all accommodation searches with dates, names etc).
However keep in mind that the Authority will only help with accommodation if there is no alternative, i.e. the client has no friends or family they can rely on or the financial resources to pay privately for accommodation.
The other usage of this is to help vulnerable adults with children going through Home Office appeals who are otherwise precluded under the Housing Act. However triggering a duty here will result in the Authority making enquires about the application which can result it being fast tracked and therefore if weak failing. It needs to have a good chance as per Clue above to trigger a duty.
The LA can stop accommodation if it deems it has given the client reasonable time to source, secure or otherwise obtain accommodation. Failure to do this and if deemed “reasonable” they can stop the accommodation and can trigger child protection proceedings if deemed necessary – so ALWAYS caution clients of this possibility.
Hat tip to Azeem Suterwalla whose brain I have picked in regards to s17 since I was pointed to Doughty Street.
Funding
Currently funding can be sought for s17 cases under both community care law contracts and housing contract (Schedule)
The Future of Legal Aid
The proposed residency test for Legal Aid limiting it to people with a “strong ” connection with the UK had a worrying number of votes now assenting for it to be carried out. (9th July Hansard page 75).
The Joint Committee on Human Rights has called for all children to be exempt from a residence test for legal aid (Link) and Dr Maggie Atkinson, the Children’s Commissioner for England and Wales, has stated in relation to United Nations Convention on the Rights of the Child
“the residence test is not compliant […] there are articles in the convention that absolutely guarantee the child—any child—the right of access to legal representation and to a legal friend and/or then in the more formal stages if the proceedings go so far as the courts.”
The Government in its reply stated
“I believe that we are in compliance with our international obligations, and indeed there are also the exceptional funding criteria. We must not overlook those. Where a particular party feels that they have not been given legal aid, they can apply for exceptional funding. That exceptional funding goes specifically to the heart of our international obligations, both in terms of Article 6 and in terms of our EU obligations.”
(Joint Committee on Human Rights: The implications for access to justice of the Government’s proposals to reform legal aid. February 2014 )
People working with Legal Aid and who have attempted to get funding under s10 of LASPO know it is a near impossible task to get the same (98% rejection) and very few are granted, not to mention the courts have already criticised the MOJ in limiting exceptional funding to cases.
In her intervention, the Children’s Commissioner argued that the proposed
residence test risked breaching a number of children’s rights protected
by the common law,the Human Rights Act, EU law and the UNCRC (The Queen (on the application of The Public Law Project) v The Lord Chancellor (Office of the Children’s Commissioner intervening) CO/17247/2013)).
Luckily for us the courts agreed Lord Moses sitting in the high court stated
‘Within the system provided in Schedule 1 of LASPO, the UK is not permitted to discriminate against non-residents on the grounds that to do so might save costs… Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not,’
It deemed the proposal ultra vires and illegal. However the grapevine suggests an appeal is pending so watch this space.
If the changes do come through it will have a large impact on clients who have immigration cases pending and with the high court finding though s17.
Further reading
Also check out the training notes by David Carter and Jamie Burton which also cover other assistance available outside of the main Housing Acts. Also check out our other Homelessness guides.
