The Ombudsman's final decision:
Summary: When considering homeless applications from a young person under 18 the Council failed to properly consider its duties under the Children Act 1989 resulting in a loss of service.
- In brief the complaint is that when assessing an application for homelessness the Council failed to:
- Properly consider its duty under Section 20 Children Act 1989 to provide accommodation for a child in need;
- Properly consider its duty to a care leaver when deciding a homelessness application in February 2008 and again in 2013;
- Consider a complaint because it related to events too long ago.
- The complainant, whom I shall refer to as Mr X, says this meant the Council denied him housing assistance and he wants it to now provide housing support and compensate him for his loss.
- Mr X says alternatively the Council should exercise its discretion to treat him as if he were a former relevant child, which means he says he should have been accommodated in May 2013 when he again applied for help.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. He 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, he may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
- The Ombudsman cannot investigate late complaints unless he decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
- The events complained of took place several years ago and so are not within the twelve months usually required for the Ombudsman to consider a complaint. However, Mr X made his complaint to the Council as soon as he received legal advice that told him the Council had acted in error. Therefore I have exercised the Ombudsman’s discretion to consider a complaint about events that took place over twelve months before the receipt of the complaint.
How I considered this complaint
- In considering the complaint I have:
- Read the information provided with the complaint;
- Put enquiries to the Council and reviewed its response;
- Taken legal advice on the application of the law;
- Shared with Mr X and the Council my draft decision and reflected on comments received.
What I found
- Under the Children Act 1989 councils have a duty to safeguard and promote the welfare of children in need within their administrative area. This may include providing accommodation.
- Section 17 of the Children Act 1989 imposes a duty on councils to:
- “safeguard and promote the welfare of children within their area who are in need and;
- “so far as is consistent with that duty promote the upbringing of such children by their families by providing a range and level of services appropriate to those children’s needs.”
- There is nobody who has parental responsibility for the child;
- The child is lost or abandoned;
- The person caring for him is prevented from providing the child with suitable accommodation or care.
- If the application is eligible for assistance;
- If so, whether any duty to house him is owned under the Act.
What happened – the facts
Children’s services team involvement up to 2005
- Mr X became known to the Council in 1993 aged 4 when his grandmother privately fostered him. This gave her parental rights and duties towards Mr X. In 2003 when Mr X was 13 his grandmother told the Council she needed help managing Mr X. He was referred to a Pupil Referral Unit to help him with his education.
- In February 2004 Mr X’s grandmother brought Mr X (then aged 14) to the Council’s offices and said he had run away the day before and she did not think she could continue caring for him. The officers discussed options with her but told her she had parental responsibility and he did not meet the criteria for being taken into care. The Council believed he had an appropriate home with his grandmother. Mr X agreed to live with his aunt for a period before returning to his grandmother.
- On 20 April 2004 Mr X’s grandmother brought him to the Council’s offices again, saying he had threatened her, been expelled from school and had regularly gone missing. On 30 April 2004 Mr X (now 15) was referred to the Youth Offending Team and his social worker involved the Council’s Diversion from Accommodation Project. Mr X’s grandmother refused to have him home because she says he threatened her with a knife. The Council discussed other options with the family but no other family member was able to offer Mr X a home. His aunt offered to share a home with him if the Council could find and fund suitable accommodation. Before the Council had considered that option, Mr X moved in with a friend’s mother, whom I shall refer to as “Mrs Y”.
- In June 2004 Mr X went missing for two weeks.
- In July 2004 Mr X’s social worker referred to housing a request to accommodate Mr X for four weeks while she worked with him to return to his family. The Council met with the family on 14 July 2004 and Mr X’s mother agreed he could stay with her temporarily.
- However, on 2 August 2004 Mr X reported the arrangement with his mother had broken down. His grandmother refused to have him back. Mr X went to the Police and they placed him a children’s home from 3-5 August 2004 (under Section 46 of the Children Act 1989). On 16 August 2004 Mr X arrived at the Police station asking to be placed in care but when the Police contacted the Council it refused to take him into care or house him. In its view his grandmother had parental responsibility and could offer him a home. That same day the Council wrote to Mr X’s grandmother saying it wanted to take the following action:
- Refer Mr X for psychiatric assessment;
- Provide a mentor;
- Provide a 1:1 agency worker;
- Refer him to education welfare to discuss his education options.
- Providing financial support via Mrs Y;
- Monitoring and supporting the placement to enable it to run smoothly;
After his 16 birthday the Council would:
- Help Mr X claim benefits;
- Reassess Mr X’s needs and wishes for accommodation and support him in that.
- Was under 18 in 2005;
- Was in need;
- Lived in the Council’s area;
- Required accommodation as a result of the person previously caring for him being prevented from providing him with suitable accommodation.
Duty to house Mr X
- On 9 September 2005 the Council accepted it had a Section 184 duty to house Mr X and placed him on the homeless housing register. The Council placed him in bed and breakfast while it awaited a vacancy in supported housing. It transferred Mr X to temporary accommodation in November 2005 but he was evicted on 7 December 2005 due to rent arrears.
- The Council provided further accommodation in a bed and breakfast hostel on 26 April 2006. He remained there until he moved to supported housing on 29 September 2006. The Council’s records show it accepted a duty to house Mr X on 16 May 2006 and did not discharge that until May 2007. So it accommodated him from 26 April 2006 until May 2007.
- The Council’s housing department considered Mr X’s homelessness applications and accepted duties to offer housing support. The Council has not shown whether the housing department liaised with the children’s services team on those applications. Mr X says he was not referred to the children’s services team and the Council’s files show no further assessments by the children’s services team after 2005 (when the Council says the children’s services team ended their involvement).
- Mr X moved into supported accommodation on 11 September 2006 provided by an independent agency. The Council says this agency had responsibility for preparing him for independent living. The licence says the agency will “...provide the Licensee with support, advice and assistance to enable the Licensee to acquire essential skills in preparation for independent living...”. There are no records of what, if any, courses were offered or attended by Mr X because the agency and its successor no longer exist. The Council has no records of requesting or receiving any reports on Mr X’s progress. The Council says in referring Mr X to the agency it asked that Mr X receive support with:
- Managing and sustaining a tenancy;
- Money, budgeting and bills;
- Purchasing food and meals, and
- Seeking assistance with education and employment.
Mr X sent to Young Offenders Institute and Prison
- Mr X offended and remanded on 1 April 2007. He served a custodial sentence, first at a youth offenders unit and on reaching 18 in an adult prison. Mr X’s prison sentence prevented him from completing the move on transition. The supported housing agency told him if released in November 2007 his placement would be kept open for him. However by October 2007 the agency advised it could no longer hold the room for him.
- In November 2007 Mr X’s grandmother agreed to house Mr X temporarily to enable his early release from prison. She did not want him to stay beyond the first month while he was under curfew. Mr X stayed with his grandmother for over 30 days. The Council told Mr X it could not consider him as homeless because he had a place to live but he could apply if he became unintentionally homeless.
- The Council has not shown any evidence that it considered whether Mr X should be treated as a child in need, having been offered emergency accommodation when under 18 years old. Nor is there evidence the Council considered whether it owed him any duties as a young person leaving care.
Homeless applications 2008 to 2014
- Mr X says he “sofa surfed” with friends between 16 January and 1 February 2008. In February 2008 (now aged 18) he again applied for housing The Council did not accept a duty to house him, deciding he was not in priority need. It offered advice but no accommodation. Mr X says it did not consider whether he was homeless or threatened with homelessness or make enquiries as set out in Section 184 of the Housing Act 1996. Mr X says he did not receive a proper notice of the Council’s decision or information on his right to have the decision reviewed.
- The Council refused a further homelessness application on 8 April 2008 because there was no change of circumstances.
- There are no records of any liaison with the children’s services team during this period or of how the Council considered Mr X’s status as a relevant child under the Children’s Act.
- After re-offending, Mr X returned to prison where he stayed from 2010 to 2012. He did not immediately apply to the Council for housing on his release but stayed temporarily with his former partner and child (born in 2009) and then “sofa surfed” until referred by the probation service to NACRO. In 2013 it offered him his present home a room in its hostel. Mr X now has a second child with his former partner (born in 2013). His hostel room cannot accommodate his two children so he is unable to have them to stay. Mr X says he needs a more appropriate home so he can have his children to stay with him.
- Mr X applied for housing in May 2013. The Council refused his application for housing on the basis he had not fulfilled the two years residency requirement. Mr X took legal advice and asked for a review of the decision.
- When Mr X applied again in May 2014 the Council asked him to attend a meeting with the Housing Options team on 11 June 2014. At that meeting the homelessness prevention assessment recorded Mr X as having two dependent children and having been in local authority care. There are no records of whether the housing service followed this up with Children’s Services, or of any consideration by the Council of whether it owed a duty to him as a relevant child.
- On 11 November 2014 the Council reviewed its earlier decision and confirmed Mr X did not meet its housing allocation criteria.
- The Council did not accept it had a duty to house Mr X because he was not in priority need. He had accommodation in a NACRO hostel which it assessed as meeting his housing needs. NACRO had given him a licence to use the room as a weekly tenancy from 24 June 2013 and had not issued a notice to quit. NACRO confirmed to the Council it had no intention of serving notice on Mr X although as part of its programme to rehabilitate it would be suggesting to him he needed to start planning his next move. The Council decided Mr X did not face a threat of homelessness.
- Mr X told the Council he needed accommodation so he could accommodate his children for whom he had a shared responsibility by agreement with their mother. He did not have a residence order. It was for the assessing authority to decide whether it is reasonable to provide accommodation for children subject to a shared custody arrangement when they are already provided with accommodation by the other parent. In the Council’s view it was not reasonable to offer Mr X accommodation on this ground alone and so it refused his application.
Legal decision on application of Section 20 Children Act 1989
- In 2009 in the case of R(on the application of G) v London Borough of Southwark EWCA Civ 877 the Supreme Court decided the council’s duty to accommodate a young person arose even if the person previously caring for the child is prevented from offering suitable accommodation through a deliberate decision not to offer accommodation. The judgement confirms the primacy of the Children’s Act over the Housing Act. The Council says this decision is not retrospective.
Mr X’s view
- Mr X’s representative says the Council owed Mr X a duty under Section 20 of the Children Act 1989 arising from its first housing him in 2005. As such it owed him a duty as a care leaver and failed to meet those duties because it had not:
- Kept in touch with him;
- Put in place a pathway plan;
- Appointed a personal adviser;
- Offered advice or help with his education and accommodation.
The Council’s view
- The Council says Mr X was not a child leaving care. The children’s services team ended their involvement with Mr X in 2005 on deciding his family did not need or want a further service. It had not looked after him since then as a child in need (although he was under 18) but as someone who presented as homeless and in priority need. Mr X says the Council’s actions between August 2005 and May 2007 when he was 16 to 17 means he should be treated as a child in need being supported by the Council. The later 2010 guidance supports this interpretation, but was not in place at the time. Mr X says that as the Council accepted it had a Housing Act duty it cannot deny it had a Children Act duty also. He says as a child leaving care the Council owed him a duty on leaving prison to appoint a personal adviser, offer financial support and help him with accommodation.
Complaint out of time
- The Council declined to consider Mr X’s complaint about these matters because it fell outside the time limit it applies to its complaints process. This is similar to the time constraints placed on the Ombudsman’s powers as outlined in paragraphs 5 and 6 above. However, both the Council and the Ombudsman have discretion to allow complaints out of time. The Council considered the legal advice provided by Mr X but declined to exercise discretion to accept the complaint. However any injustice from that decision is remedied by this investigation into the complaint.
- My role is to decide if the Council acted without fault in reaching its decisions. It is not to give a definitive ruling on the law relating to children, homelessness or housing. The Ombudsman can apply settled law but legal disputes over the interpretation of the law are a matter for the court. The Ombudsman may take legal advice to help him in reaching a decision. Advice has been taken on the duty owed to Mr X. I will consider how the Council acted in the light of the legal advice I have and the legal advice available to the Council and Mr X.
Duty owed to Mr X
- The Council’s view is the Southwark case (paragraph 63 above) does not apply retrospectively. I disagree. The judgement served to clarify the correct interpretation of the law in force in 2005 and which had been in force since 1991. Therefore I find the Council did not apply the correct interpretation of the law in 2005.
- To decide this complaint I need to decide if the Council owed Mr X a duty as a child in need under Section 17 of the Children Act 1989. If it did, then the Council would also have a duty to provide Mr X with services on leaving care.
- I have set out Section 17 of the Children Act 1989 above. It is a general duty to offer services including accommodation to a child in need. Did Mr X qualify as a child in need? I have found he did.
- The Council said it would fund accommodation for Mr X to live with an aunt, it also offered funding for him to live with Mrs Y under Section 17 of the Children Act 1989. That funding was approved by the Council’s Friends and Family Panel in January 2005. It drew up an action plan (in line with its duties towards looked after children) for support for Mr X between his 15th and 18th birthdays. That shows the Council treated him as a child in need.
- The Council’s later decision to offer accommodation between 3 and 28 August 2005 because Mr X (then aged 16) had priority need also shows he should have been treated as a child in need, if not a looked after child.
- By August 2005 when the Council provided temporary accommodation, the Council says Mr X did not require accommodation because his needs could be met by his family. However, Mr X’s grandmother had refused to have him back. She had parental responsibility and had provided the home he had lived in for much of his life. Applying the Southwark judgment her refusal constitutes her being ‘prevented’ from offering accommodation (see paragraph 63 above). That means Mr X met the criteria under Section 20 of the Children Act 1989 because he was a child in 2005, was in need (as evidenced by the housing decision and support given earlier), lived in the Council’s area and needed accommodation.
- But the Council did not properly assess Mr X as a child in need in August 2005. Although it accepted he had priority need for housing purposes it failed to consider his needs as a child. The duty owed under Section 20 of Children Act 1989 has primacy over Section 17 of that Act and over the duties owed under the Housing Act 1996. While guidance says councils should first consider any need for a home under the Housing Act, they should then consider whether a duty is owed to the child as a child in need. The Council failed to do so.
- Having decided the Council owed Mr X a duty under the Children Act in 2005 I must consider whether that means it also owed him a duty under the Children (Leaving Care) Act 2000. The Council owes Mr X such a duty if it provided accommodation for him for more than 13 weeks between his 14th and 18th birthdays. The Council here provided accommodation between 3rd and 28th August 2005 (when he was 16) and between 19 May 2006 (when he was 17) and 6 May 2007, a total of 53 weeks.
- The Council therefore owed Mr X a duty to provide leaving care services. It should provide a pathway plan, a personal adviser and support with housing. That obligation continues until the young person is 21 (or 25 if in higher education).
Impact on Mr X’s presentation as homeless on release from prison
- When Mr X presented as homeless on release from prison there was no liaison between the housing team and the children’s services team. The Council failed to consider whether it owed Mr X a duty to provide advice, support with housing and education, and a personal adviser.
- Mr X did not receive the support he should have received as a former ‘looked after’ child. The failure by the Council’s children’s services team and housing team to properly liaise and consider what duties it owed Mr X in 2005, 2008 and 2014 resulted in him not having the benefit of a pathway plan, an adviser and assistance in finding housing. NACRO has housed him since June 2013 and the Council says that meets his needs. Without any formal arrangement such as a residence order for his two children the Council does not have to consider his desire to have them stay with him when deciding his housing needs.
- What impact did the lack of services have on Mr X? While it is difficult to be certain, Mr X says if he had received appropriate housing and support from the Council he would not have been left to fend for himself. He has experienced several periods of homelessness, been the victim of gang violence and he has feared for his life. Mr X says with proper support he could have continued his education and made better choices. The prolonged lack of services between the ages from 15 to 21 (or 25 had he taken up further education) left him fending for himself at an early age, without the advice of a mentor or someone to help him decide on future education or employment prospects. The experience has left him depressed and without suitable housing where he can accommodate his children.
- Mr X is now 27. Any obligation owed by the Council would have ended on his reaching his 21st birthday (or 25 if he had been in further education). What has happened since he reached the age of 21 cannot be attributed to this failing by the Council and I cannot on the balance of probabilities say that Mr X would have been in a secure home or employment but for the failings identified here. So while Mr X would have had the advice of a personal adviser and some support to find housing, employment or further education I cannot say whether he would have continued with his education or the housing provided. Though he will never know what the outcome would have been, for the uncertainty and lack of service a remedy is required.
Recommended and agreed action
- To remedy the injustice arising from failing to properly consider the duty to accommodate and provide support through the children’s services team I recommended and the Council agrees to offer services similar to those it would offer a relevant child or someone leaving care by:
- Appointing a named officer to assist Mr X by liaising with the Council’s service departments, NACRO and Mr X and his adviser;
- Liaising with NACRO to identify any skills training courses that may benefit Mr X at minimum cost to the Council;
- In liaison with NACRO considering in line with statutory and Council housing allocation policies the possibility of a direct let to Mr X on his moving on from NACRO, or assistance with a rent deposit;
- Within six weeks of the date of this decision paying Mr X £5,000 for his distress, inconvenience and uncertainty caused by the lack of service.
- I uphold the complaint that the Council failed to properly consider its duties under the Children Act leading to a prolonged and significant injustice to Mr X. The Council’s agreement to my recommendation will remedy that injustice.
Investigator's decision on behalf of the Ombudsman