Decision : Upheld
Decision date : 23 Nov 2020
The Ombudsman's final decision:
Summary: The Council failed to provide support to Miss Y as a care leaver, particularly with finding suitable accommodation, after it failed to recognise she was a looked after child between the ages of 16 and 18. To remedy the injustice caused to Miss Y it will apologise, revise its procedures, assess what support Miss Y should receive as a care leaver, and make a payment to acknowledge the distress and uncertainty caused by fault.
- Miss Y complained the Council failed to provide support, particularly with finding suitable accommodation, to her as a care leaver under section 20 of the Children’s Act. She complained the Council instead considering her to be a child in need under section 17.
- Miss Y said this led to her being unable to continue in her accommodation, without funds or assistance and leaving her in a vulnerable position, homeless and living on the street.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- Miss Y originally complained to the Council in July 2018. The Council responded in August 2018. It did not uphold her complaint. Miss Y did not challenge the Council’s response until July 2019 with the support of an advocate. This would usually be a late complaint, as it took Miss Y more than 12 months to bring her complaint to the Ombudsman.
- As she had only recently become an adult and did not have access to advocacy support when she complained in July 2018, I have used my discretion to investigate the complaint as these are good reasons for her not to have come to us sooner. I have therefore investigated her complaint about the support she received when she approached the Council in 2018 following her eviction from her accommodation.
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I wrote to Miss Y’s representative and made enquiries to the Council. I considered information provided by Miss Y and the Council. I also considered the Ombudsman’s guidance of remedies.
- I gave Miss Y and the Council an opportunity t comment on my draft decision and considered the comments received before making a final decision.
What I found
The law and statutory guidance
Children in need, looked after children and care leavers
- A looked after child is any child who is subject to a care order or accommodated away from their family by a local authority under section 20 of Children Act 1989 (the Act).
- Section 20 of the Act says local authorities can provide accommodation to a child when they do not have somewhere suitable to live. As a looked after child, they will be appointed a social worker who will assess their needs on an ongoing basis and develop a care plan. When a young person who has been accommodated under section 20 leaves care at 18, they are a priority for housing support.
- Section 20 (1) of the Act requires councils to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of “c. the person who has been caring for them is prevented (whether or not permanently, and for whatever reason) from providing them with suitable accommodation or care”.
- Section 17 of the Act says local authorities have a general duty to safeguard and promote the welfare of children within their area who are in need and can provide a range of services to meet the child’s needs. Services can include advice, financial assistance and accommodation. Support with accommodation for children in need could include helping a young person aged 16 to 17 to access accommodation by paying a deposit and rent in advance, or to enable them to meet any rent shortfall after housing benefit. Local authorities can use their powers under section 17 to assist homeless children together with their families. Social services can provide accommodation for a whole family under section 17A.
- The Children (Leaving Care) Act 2000 sets out councils’ legal duties to provide ongoing support for children leaving care. The type of support offered depends on whether the child would have been considered an eligible child or a relevant child at the age of 16 or 17.
- An “eligible child” is:
- looked after;
- aged 16 or 17; and
- has been looked after by a local authority for a period of 13 weeks, or periods amounting in total to 13 weeks, which began after they reached 14 and ended after they reached 16.
- not currently looked after;
- aged 16 or 17 and;
- was, before they last ceased to be looked after, an eligible child.
Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation
- This statutory guidance was first produced in 2010 and was updated in April 2018. The events in this case begin with the 2010 guidance.
- The guidance confirms any duty owed to homeless 16 and 17 year olds under the Children Act 1989 takes precedence over the duties under the homelessness legislation.
- Where a 16 or 17 year old asks the council’s children’s service, or is referred to children’s services, for help with homelessness or being threatened with homelessness, councils must carry out an assessment of whether it is under a duty to accommodate the child under section 20.
- It says there are only two circumstances where a council might find a homeless young person should not be accommodated under section 20; where a) they are not a child in need or b) they are a 16 or 17 year old child in need who, having been properly and fully advised of the implications and having the capacity to reach a decision, has decided that they do not want to be accommodated under section 20.
- The guidance says “It will be essential that the young person is fully consulted about and understands the implications of being accommodated by children’s services and becoming looked after”. The person leading the assessment “must provide realistic and full information” about the package of support that the young person can expect as a looked after child and, later as a care leaver (former relevant child). In order to be able to demonstrate this, we would expect councils to keep a record of the information provided, their consideration of the young person’s capacity to make the decision as well as a record of the young person’s decision.
- The guidance explains the provision of accommodation under section 17 will almost always concern children needing to be accommodated with their families. The powers “to provide accommodation under section 17 cannot be used as a substitute for their duty to provide accommodation under section 20”.
- The guidance confirms that children’s services do not have the option of choosing between section 17 and section 20 when providing homeless 16 and 17 year olds with accommodation. It confirms the judgement of R (G) v Southwark  UKHL 26, which found section 20 “involves an evaluative judgement on some matters but not discretion”.
Housing and homelessness
- From April 2018, if someone is homeless, or threatened with homelessness within 56 days, they can seek help from the housing authority. Where the person is threatened with homelessness, the prevention duty may apply. Where the person is already homeless, the relief duty may apply. This will usually apply if the person is:
- homeless; and
- eligible for assistance.
- eligible; and
- in priority need
then it must provide interim accommodation for them.
- A person may be in priority need for housing if, among other things, they are a former care leaver aged 18 to 20.
- Homeless applicants may request a review within 21 days.
- In November 2018, Ofsted inspected the Council’s children’s social care services. The inspection report said the Council needed to improve its response to 16 and 17 year olds who are homeless and improve its recording of reflective discussion and actions. It explained that “when young people become homeless, they are offered accommodation… but… are not always fully informed of their rights and entitlements to become looked after.”
- In 2014, Miss Y was 14 years old. She approached the Council after a breakdown of her relationship with her parents. The Council placed her in foster care. Miss Y was a looked after child for a total of 36 weeks. The Council accommodated her under section 20 of the Children Act 1989 with foster carers. This ended in summer 2015 when Miss Y’s parents agreed for her to live with another relative. Miss Y returned to her parents’ home in early 2016 before she was 16.
- Miss Y’s relationship with her family broke down in December 2016 and she told the Council she was unable to continue living in the family home. Miss Y’s family told the Council she could no longer live there. She was 16 years old. The Council completed a child in need assessment to consider Miss Y’s needs and how these could be met.
- The assessment listed Miss Y as being over 16 and having a legal status of “Section 17”. The assessment stated Miss Y had been “previously subject to Section 20 child in care intervention however left and returned to her parents within a very [short] timescale.” The assessment stated Miss Y needed “alternative accommodation” and following the assessment was “considered a Child in Need”.
- The Council arranged for Miss Y to live in supported lodging provision in December 2016. This is a type of accommodation for those young people who require some support to help them make the transition to independent living. This also included support to work towards living independently and maintaining a tenancy. She remained in this accommodation for more than 13 weeks. The Council gave her financial support until she was able to access benefits. The Council supported Miss Y through a child in need plan and had regular contact with her.
- The Council, in its response to my enquiries, said it also gave other support and advice from its leaving care service. It was unable to provide evidence of this as its record keeping was inconsistent. It has referred instead to the support, although it cannot be specific, that Miss Y referred to in her complaint letter.
- Miss Y’s case was closed with the Council’s children’s services shortly after Miss Y became 18.
- Miss Y approached the Council’s housing team in June 2018 (when she was 18) as the supported lodgings provider had evicted her. She was staying with a friend, but this was temporary until she had other accommodation. The Council did not offer her interim accommodation. I have seen no record to show how it considered whether she may be in priority need when she first sought help.
- The Council accepted it had a homelessness relief duty in July 2018. The Council, following discussion between its children’s services and housing department, told Miss Y, she would not be considered as a care leaver. Consequently, although the Council accepted it had a duty to try to relieve Miss Y’s homelessness, it told Miss Y she was not eligible for leaving care services.
- Miss Y disagreed as she said the Council had told her, when she had been at the supported lodgings, that she was a looked after child under section 20 which would entitle her to support, including help with accommodation and living costs. She complained to the Council in July 2018.
- The Council responded to the complaint in August 2018. It said Miss Y “did not have care leaver status” as she was not in foster care on her 16th birthday, having returned to her parents’ home and it did not uphold her complaint.
- The Council said it worked with Miss Y to secure private rented accommodation but this was unsuccessful. Miss Y disputes this. The records suggest that Miss Y identified possible properties to rent herself and she arranged to view them. However, she was not able to proceed with those properties because the Council was not willing to act as guarantor and Miss X did not have anyone else to ask.
- The Council’s housing team considered whether it owed a full housing duty to Miss Y. It decided she did not have a priority need for housing, because she was not a care leaver and did not fit into any of the other priority categories. It told her about her right to request a review but she did not request a review of its decision.
- Miss Y said that, following the decision, she arranged to stay in a hotel room because it was clear the Council would not help her. She said the hotel granted her a tenancy for the room, and claimed housing benefit to cover the rent.
- Miss Y complained to the Council again through an advocate in July 2019. The Council said it had already given its response and this had not changed. It referred Miss Y to the Ombudsman. From April 2020 Miss Y has lived in settled accommodation with her new partner.
- When Miss Y approached the Council after her eviction from supported lodgings, she was over 18.
- The housing support Miss Y was entitled to from the Council depended on whether Miss Y was a former relevant child and therefore a care leaver at 18.
Was she an eligible child?
- An eligible child is someone who is looked after, aged 16 or 17 and “has been looked after by a local authority for 13 weeks, or period amounting in total to 13 weeks, which began after [she] reached 14 and ended after [she] reached 16”.
- Miss Y was a looked after child when she was 14 and in foster care for 36 weeks. This period of accommodation ended before she turned 16 which meant she was not an eligible child during this period.
- The Council referred to Miss Y not being eligible for care leaver status “as she had not been looked after for a period of 13 consecutive weeks on her 16th birthday”. However, the statutory guidance does not require the 13 weeks to be consecutive nor does she have to be looked after on her 16th birthday. It includes “periods amounting in total to 13 weeks”. As the Council placed an additional requirement for the 13 weeks to be consecutive, this was at fault. To avoid potentially causing a future injustice to other young people, the Council should revise its procedures and information for service users to remove the requirement for the 13 weeks to be consecutive.
- Miss Y approached the Council in December 2016 for support with her housing when she was 16.
- The Council should first have considered whether it had a duty to accommodate her under section 20 of the Children Act 1989. Section 20 (1) of the Children Act requires councils to provide accommodation for any child in need within their area who appears to them to require accommodation because the person who has been caring for them is prevented (whether or not permanently, and for whatever reason) from providing them with suitable accommodation or care.
- The Council had assessed her as a child in need when she was 16. The breakdown of her relationship with her parents appears to point to them not being able to provide her with suitable care and accommodation under section 20(1) of the Children Act. Even if the criteria in section 20(1) do not apply, section 20(3) requires that: “Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation”.
- As a result, the evidence shows the Council was wrong not to realise she required accommodation under section 20.
- Nevertheless, the statutory guidance said a 16 or 17 year old child in need can refuse accommodation offered under Section 20, if the Council is satisfied the young person has been provided with all relevant information and has capacity to make the decision.
- We would expect the Council to be able to provide a record of the discussion with Miss Y, her decision and the Council’s consideration of whether she had made an informed choice not to be accommodated under section 20 and understood the implications to any leaving care status. The Council does not have records to show this. It acknowledged that it had been inconsistent with its record keeping at this time. The Ofsted inspection also found the Council did not ensure young people were always fully informed of their rights and entitlements to become looked after. The Council’s failure to keep records was fault.
- Miss Y appears to have believed she was being accommodated under section 20. Without records to show otherwise, the Council cannot demonstrate she had chosen to be accommodated in the supported lodgings as a child in need under section 17 rather than section 20. Therefore, it was wrong to say it provided her with supported accommodation and financial support only as a child in need. Accommodation under section 17 cannot be used as a substitute for its duty to provide accommodation under section 20
- This means the Council failed to recognise Miss Y was a looked after child between December 2016 to when she turned 18 in 2018. As this period was more than 13 weeks, she would have become a former relevant child and a care leaver at 18.
- The Council provided Miss Y with some additional support as a child in need between the ages of 16 and 18. It paid for accommodation, provided some visits from its children’s services team, gave some advice and provided financial support until she received benefits. At this late stage, it is difficult to quantify what additional support she may have received as a looked after child between the ages of 16 and 18. As a result, I will recommend a token financial payment to acknowledge the lost opportunity of additional support, including planning for leaving care. I will take into account her age and vulnerability at the time.
- If it were not for the fault, the Council would have also provided Miss Y with the support and guidance she was entitled to as a care leaver after she turned 18. The support would have included the appointment of a personal adviser and a pathway plan until she was at least 21 and may have included financial support.
- The Council should carry out an assessment of Miss Y as a care leaver and prepare a pathway plan without delay. It should provide the support set out in the pathway plan, including a personal adviser and any relevant grants. She is soon to turn 21 and may no longer be eligible for care leaving support. Therefore, I will also recommend a token payment to acknowledge the lack of support as a care leaver from 18.
- The Council said it did provide some advice and information after Miss Y complained but has not been able to provide a record to show this. Miss Y said she was not supported. On balance, I find the Council did not support her.
Was Miss Y entitled to housing priority as a care leaver?
- When Miss Y approached the Council in June 2018, aged 18, explaining she was homeless, the Council failed to correctly identify her as a care leaver.
- When the Council’s housing department contacted its own children’s services, it was told Miss Y had “no care leaving status”. I have already explained why the evidence shows Miss Y was a care leaver. If the Council had correctly identified she was a care leaver this would have meant she was in priority need and the Council would have had a duty to provide interim accommodation for her, even if only between June and September 2018 while it made enquiries about her homelessness.
- Even without that information, the Council’s housing department should have considered whether she may be in priority need as a result of her earlier periods as a looked after child when she approached it in June 2018. It should also have considered this when deciding if it owed a full housing duty and should have set out its reasons for deciding this did not mean she was in priority need in its decision letter in September 2018. I have seen no record that it did so, and this is further fault.
- If the Council’s children’s services team had provided the right information and its housing team then provided the correct support, we would not have been critical of the housing decision. We hold the Council to account as a whole body. There was fault in the Council’s decision on her housing priority as the evidence shows she was a care leaver and therefore its decision was based on incorrect information. If there is fault in the process, the law says we can question the Council’s decision.
- But for the fault identified, the Council would have provided interim accommodation from June to September 2018. We cannot say, even on the balance of probabilities, what may have happened next. The Council may have decided Miss Y was intentionally homeless because she had been evicted from the supported lodgings. Alternatively, if Miss Y had been receiving care leaving support, the eviction may have been avoided or the support may have made it possible for her to return to that accommodation. All this can only be speculation. However, what is clear is that Miss Y felt distress as a result of the lack of support from June 2018 onwards and has suffered uncertainty about what housing support she would have had if she had been recognised as a care leaver at the time. I will recommend a payment to acknowledge this distress and uncertainty.
- To remedy the injustice caused to Miss Y by the Council’s failure to recognise she was a looked after child between 16 and 18, and then a care leaver at 18, the Council will within one month of a final decision:
- apologise for failing to recognise it had accommodated her under section 20 of the Children Act when she was 16 which led it to incorrectly refuse to provide her with priority housing support when she approached it as homeless aged 18.
- assess what support Miss Y is currently entitled to as a care leaver and set out that support in a pathway plan.
- pay her £1,000 to acknowledge the distress and uncertainty caused in relation to the additional support she might have received when:
- she was a looked after child between the ages of 16 and 18; and
- a care leaver from the age of 18.
- I have completed my investigation. The Council was at fault causing injustice to Miss Y both in terms of its children’s services decisions and its housing decisions.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman