Guidance on accommodating Children in Need

Guidance on accommodating Children in Need
Local Authority Circular LAC (2002) 13

1. Summary

This Local Authority Circular covers guidance to councils with social services responsibilities on providing assistance to families of children in need, and to lone children, in the light of the amendments to Sections 17 and 22 of the Children Act 1989 which came into effect when the Adoption and Children Act 2002 received Royal Assent on 7 November 2002.

2. Action

Authorities and copy recipients are asked to note the contents of this circular, and pass this document to those staff who may be engaged in applying the new legislation.

3. Cancellation of circulars

This Circular will remain in effect until further notice.

4. Enquiries

Enquiries about this Circular and its enclosures should be made to:

Children's Services
Room 118
Wellington House
133-155 Waterloo Road
London SE1 8UG

Further copies of this Circular may be obtained from Department of Health, PO Box 777, London SE1 6XH,
Tel. 0870155 5455 or Fax 01623 724 524.

Please quote the code and serial number appearing on the bottom right-hand corner. Current circulars are now listed on the Department of Health web site on the Internet at:

http://www.doh.gov.uk/publications/coinh.html

Full text of recent circulars is also accessible at this site.
© Crowncopyright 2003.

This Circular may be freely reproduced by all to whom it is addressed.

Providing assistance under Section 17 of the Children Act

Introduction

A series of Court of Appeal judgements (A v London Borough of Lambeth, followed by W v London Borough of Lambeth) cast doubt on Local Authorities' powers under section 17 of the Children Act 1989 to help families and children with accommodation.

For the avoidance of future doubt about the use of section 17 of the Children Act 1989 in relation to accommodation, and to help with accommodation, amendments to the section were made by the Adoption and Children Act 2002. Those amendments have the effect of confirming
the position, which was generally understood to have applied before the judgement in A v London Borough of Lambeth. That is, that section 17 of the Children Act 1989 includes the power for local authorities to provide accommodation for families and children; and that the
provision of accommodation in this way does not make a child looked after. The amendments came into force on 7 November 2002.

Amendment to section 17 Section 17 (provision of services for children in need, their families and others) to the Children
Act 1989 now reads

"17(6) The services provided by a local authority in the exercise of functions conferred upon them by this section may include providing accommodation, giving assistance in kind or, in exceptional circumstances, in cash."

Because section 22 of the Children Act defines a child as a looked after child if they are accommodated by a local authority in the pursuit of its duties, and the power in section 17 is not and was not previously intended to provide a route by which a child should enter the looked after system, section 22 has been amended so as to exclude children provided with accommodation under section 17. Section 22 (general duty of local authority in relation to children looked after by them) now reads

"22(1) In this Act, any reference to a child who is looked after by a local authority is a reference
to a child who is -

(a) in their care; or

(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B."

Framework for the Assessment of Children in Need and their Families

The amendment to section 17 did not affect the duties and powers of local authorities to provide accommodation for lone children under section 20 of the Children Act 1989, or under a care order. Accordingly, the power to provide accommodation under section 17 will almost always
concern children needing to be accommodated with their families. However, there may be cases where a lone child who needs help with accommodation, but does not need to be looked after, might appropriately be assisted under section 17.

Before deciding which section of the Children Act 1989 provides the appropriate legal basis for provision of help or support to a child in need, a local authority should undertake an assessment in accordance with the statutory guidance set out in the Framework for the Assessment of
Children in Need and their Families, published by the Government in April 2000. It should then use the findings of that assessment, which will include taking account of the wishes and feelings of the child (as required by section 20(6) of the Children Act), as the basis for any decision about whether he should be provided with accommodation under section 20 (and therefore become looked after) or whether other types of services provided under section 17 of the Act are better suited to his circumstances.

The assessment should first determine whether the child meets the criteria set out in section20(1).

Those criteria are:

(a) there being no person who has parental responsibility for him;

(b) his being lost or abandoned

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation and or care.

For example, where a child has no parent or guardian in this country, perhaps because he has arrived alone seeking asylum, the presumption should be that he would fall within the scope of section 20 and become looked after, unless the needs assessment reveals particular factors which
would suggest that an alternative response would be more appropriate. While the needs assessment is being carried out, he should be cared for under section 20.

Local authorities have reported cases where older asylum seeking children have refused to become looked after, but where because of their immigration status the Children Act provides their only lawful means of support in this country. In such cases the child's being without a family or responsible adult in this country would appear to trigger a duty under section 20(1),

However, after taking account of the child's wishes as required by section 20(6), the local authority might judge that the child is competent to look after himself. In such circumstances it would not need to assume the whole responsibility for accommodating him under section 20
(and thereby taking him into the looked after system). In such cases section 17 may be used for support, including help with accommodation, without making the child a looked after child.

Similarly, there has been some uncertainty about the legal basis for the jointly funded placements with LEAs of children in residential schools. Children should not normally be
maintained in schools by social services departments unless they are looked after, whether under section 20 or section 31. This will ensure that their progress is regularly reviewed and their welfare safeguarded. However, it will not be necessary or desirable for all children known to/funded by social services and placed in residential schools to be looked after. This judgementshould be made following a thorough assessment of the needs of the child and family. It will consider whether the child needs the local authority to take responsibility for the provision of accommodation, with attendant looked after status. In particular, it will need to take into account the length of time spent away from the child's family, the degree of contact between the
child and his parents, the quality of the child's primary attachments and any particularvulnerabilities of the child. Where this assessment concludes that section 20 criteria are not met, the local authority may then consider providing financial support for the placement under section 17.

Suitability of accommodation

Where Social Services Departments provide ccommodation, or money towards the cost of accommodation, under section 17, they should ensure that the accommodation is suitable for the families and children for whom it is intended. Councils will be aware of the Homelessness Code
of Guidance for Local Authorities issued jointly by the Department of Health and the Office of the Deputy Prime Minister in July 2002. This provides guidance, specifically to housing authorities, about the suitability of accommodation provided by them in meeting their duties under the Homelessness Act 2002. Social Services Departments might find it helpful to refer in particular to Chapter 12 of the Code, which deals with suitability of accommodation, and to
work closely with Housing Departments in putting it into practice.

Placements out of area

Where a Social Services Department provides help under section 17 which involves providing or funding accommodation out of their own area, the placing Department does not relinquish responsibility for the case unless it is specifically and formally transferred to another local authority. In addition, the placing authority should consider whether it is the child's best interests to advise the second authority of the placement, and should do so unless there are strong reasons not to.

Conclusion

This guidance draws the attention of councils with social services responsibilities to amendments to section 17 and section 22 of the Children Act 1989, which came into force on 7 November 2002.

Orginal copy as a PDF file

LOCAL AUTHORITY CIRCULAR LAC(2003)13
To: The Chief Executive
County Councils )
Metropolitan District Councils ) England
Shire Unitary Councils )
London Borough Councils
Common Council of the City of London
Council of the Isles of Scilly
The Director of Social Services 2 June 2003

Source: www.doh.gov.uk