Ordinary residence: homeless children

The Community Care team at 39 Essex Street consider the lessons to be learned from a Local Government Ombudsman investigation into a complaint against Doncaster Council.

Issues

A 17 year old girl, claiming to be homeless and fleeing abuse in her family home, was turned away by a council’s children’s services department on the basis that the council was not her “home authority”, which it contended was North Yorkshire.

No assessment of the girl’s needs was carried out, but the council did give her a discretionary payment of £50 to help her to travel to North Yorkshire. A complaint was made to the Local Government Ombudsman (LGO).

Decision

The LGO found that the council was at fault in a number of respects, notably by failing to assess the child’s needs under section 17 of the Children Act 1989 and failing to provide her with accommodation under section 20 of the 1989 Act.

The LGO noted that ss. 17, 20(3) and (4) of the 1989 Act do not require a putative child in need to be ordinarily resident in the authority’s area. The council’s approach was also found to be in breach of the statutory guidance set out in ‘Provision of Accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation’, which provides that where a 16 or 17 year old approaches children’s services as appearing to be homeless, children’s services must assess whether the young person is a child in need and whether any duty is owed under section 20 to provide them with accommodation. The LGO recommended a range of remedies, including an apology and a financial payment.

Comment

The LGO’s decision underscores the obvious – but important – point that a council faced with a putative child in need cannot determine whether the child is actually in need without carrying out a proper assessment. The existence of the duty to take reasonable steps to assess in these circumstances has been well established by the authorities (see R v London Borough of Barnet, ex p. G [2003] WLR 1194). It was also obvious that this case triggered, or should have triggered, duties under section 20, at least pending the completion of an assessment. The decision provides further evidence of the erroneous use in section 17 cases of the ordinary residence test by some front-line decision-makers. Section 17 assessment duties are triggered by physical presence – a principle established by the decision in R (Stewart) v LB Wandsworth & Ors [2001] EWHC Admin 709 and reaffirmed last year in N & N v London Borough of Newham & Anor [2013] EWHC 2475 (Admin).

This article was written by the Community Care Team at 39 Essex Street comprising Jonathan Auburn, Tom Amraoui and Benjamin Tankel.