Summary: Miss X complained the Council failed to consider whether it owes a duty under section 17 of the Children Act 1989, particularly section 17(6), to provide accommodation. She says that living away from her son’s school and transporting him daily is causing distress and is unsustainable. The Council declined to carry out an assessment under the Children Act because Miss X and her son do not reside in its area. This is fault as caselaw has established the test is physical presence in the area and going to school would meet this test.

The complaint

1. Miss X complains the Council failed to consider whether it owes a duty under section 17 of the Children Act 1989, particularly section 17(6), to provide accommodation.
2. Miss X says that living away from her son’s school and having to transport him there every day is stressful and unsustainable.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Section 17 duties

7. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
8. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

Duty to provide services

9. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days. Where the council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family. The plan must be reviewed within three months of the start of the child in need plan and further reviews should take place at least every six months thereafter. (Working Together to Safeguard Children) 

Types of services

10. In the exercise of functions conferred on them by section 17 of the Children Act, councils may give assistance in kind, in cash or provide accommodation. (Section 17(6) Children Act 1989)

Child in Need Plan

11. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

Key facts

12. Miss X and her son, Z, live in a neighbouring council area. Z attends a special school in Rutland which is able to meet his special educational needs. Miss X transports Z to and from school everyday because of his medical needs. Miss X would like to live nearer to Z’s school.
13. The Council refused Miss X’s request to join its housing register because she does not meet the application criteria. In correspondence with the Council about housing Miss X raised the issue of the Council’s duty under Section 17 of the Children Act 1989. She said there was a right for the parent to approach the authority in which the child goes to school.
14. While the Council responded to Miss X’s communications, there was nothing to suggest it had considered the issue of whether it owed a section 17 duty in respect of providing information. This prompted Miss X to complain to the Ombudsman.
15. In response to my enquiries, the Council says it did receive a request from Miss X regarding the section 17 duty to provide accommodation. It says it sought legal advice and concluded that as Miss X and Z do not reside in Rutland, it has no duty to assess or support them. It says its duty is to support children and families who reside in Rutland.
16. The Council has provided a copy of an email it sent to Miss X on 2 May 2024. The email says that even though Z attends school in Rutland, support regarding housing would be a matter for the council where she lives.

Analysis

17. The information provided shows the Council has taken the position that because Miss X does not live in its area that it has no duty to her under section 17 of the Children Act 1989. It says that it has taken legal advice in reaching this view. The Council has therefore declined to take a view on whether Z is a child in need or consider Miss X’s request for assistance with accommodation.
18. As explained above, the Children Act says every local authority has a duty to safeguard and promote the welfare of children within their area who are in need. The act does not use the term reside. The Act also says that the services provided may include providing accommodation and giving assistance in kind or in cash. I note the Act says “may” and not “must” provide.
19. I consider the Council’s position that it only has a duty to children and families residing in its area is incorrect. Caselaw has established that a child can be present in more than on area, for example if they are resident in one area and attending school in another.
20. In a case against the London Boroughs of Wandsworth, Lambeth and Hammersmith and Fulham, the judge found that two of these authority’s had a duty to assess the needs of the claimant and her family. This was because they lived in one area and went to school in the other. The judge said the test should be whether the child has a physical presence in the council area and that this would include attending school. The judge also said that this was a case where the two authorities should have co-operated in respect of the assessment. (R v Wandsworth LBC ex p Sandra Stewart [2001] EWHC 709 (admin))
21. The Council says that it took legal advice but it has not shared a copy with me. I therefore do not know if consideration was given to the above judgement. Based on the information I have seen, I am satisfied the council had a duty in this case because Z attends school in Rutland. I consider the decision to refuse an assessment in this case is fault. The duty to consider the family’s accommodation needs lies with both Rutland and the local authority where Miss X lives. This does not mean that both authorities should complete separate child in need assessments but there should be co-operation between them to properly consider the accommodation needs of the family.
22. I have found fault and so need to consider the injustice caused to Miss X. The failure to complete an assessment, either alone or in cooperation with the council where Miss X lives, causes uncertainty. What services to offer is a decision for the councils to make and not something the Ombudsman can determine for them.
23. Since sharing a copy of a draft of this decision statement with the Council, it has been in contact with Lincolnshire County Council and satisfied itself that a child in need assessment has been completed. Rutland County Council has determined Miss X is appropriately housed and that it will not ,therefore, offer further assistance. This is a decision the Council is entitled to take and so I will not criticise it.

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Agreed action

24. To remedy the injustice caused to Miss X and Z as a result of the fault identified in this case, the Council will, within one month of my final decision, take the following action:
• Apologise to Miss X and Z; and
• Share this decision with relevant staff to ensure they understand their duties under the Children Act to prevent similar fault recurring.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman