Social services must assess children’s needs and keep the assessment up-to-date in order to decide what services should be provided.
Duties to provide accommodation
Under section 17 of the Children Act 1989, local authority social services have an ongoing general duty to safeguard and promote the welfare of 'children in need' (and those of their families) in their area. This duty can include providing accommodation.
There is a further duty under section 20 to accommodate certain children in need in their area.
There is no requirement in the legislation for a child to be 'ordinarily resident' to trigger these duties – the child's presence is sufficient.[1]
Definition of child in need
A child is 'in need' if:[2]
they are unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision of services by a local authority under Part 3 of the Children Act 1989
their health or development is likely to be significantly impaired, or further impaired, without the provision of such services
they are disabled
Development means physical, intellectual, emotional, social or behavioural development. Health means physical or mental health.[3]
A homeless child is a child in need.[4]
Assessment of children in need
There is a specific requirement for an assessment of a child in need in order to decide what services should be provided under the Children Act.[5]
An assessment must take into account all the child's needs (including accommodation), assess the further support the child needs and be kept up-to-date when the child's circ*mstances change. This requires a reassessment.
The authority must carry out full and proper inquiries, and show procedural fairness when performing any reassessment. It may also be possible to challenge an assessment if it does not consider the impact of a failure to provide services and/or accommodation on a child's health or development.[6]
Where applicable, the assessment must consider needs resulting from the child being the victim of human trafficking or being an unaccompanied asylum-seeking child.[7] Being at risk of radicalisation should be included in the range of factors relating to a child's welfare, and if they are a child in need.[8]
Statutory Guidance on accommodation for 16 and 17 year olds stresses that timely assessment is a vital element in achieving quality of outcome for the child. It states that, following a request for services under the Children Act:[9]
a decision on the type of response that is required and acknowledgement of the referral must be made within one working day of the request being made
the assessment must be completed within 45 working days from the point of referral; if this time is exceeded the reasons must be recorded
A local authority must comply with the guidance. Failure to comply is unlawful, except in exceptional circ*mstances.[10] Statutory guidance also requires each local authority to publish a 'threshold document' in which the process and criteria for assessment are set out.[11]
An assessment is also unlawful if reaches a conclusion that no reasonable authority could have reached. In one case, social services made a referral to a specialist family support service after identifying that the child had responsibilities beyond those appropriate for her age and concluded its assessment without waiting for the outcome. The High Court found the assessment to be unlawful.[12]
Which authority?
The duty to carry out a child in need assessment falls on the social services authority in which the child is present. There is no requirement that they are 'ordinarily resident' in the area.[13]
A child can be present in more than one authority's area, for example if they are resident in one area and attending school in another. Both authorities are under the duty to carry out an assessment. Presence in an area would require something more than a brief visit.[14]
Care plan
Once a child in need assessment has been completed, the decision as to what services are to be provided should be set down in a multi-agency child in need plan.[15] The care plan should be 'a realistic plan of action'. [16] It should be 'reviewed regularly to analyse whether sufficient progress has been made to meet the child's needs and the level of risk faced by the child'.[17]
Co-operation between departments
Different departments within the same local authority should work together and have protocols for joint working responsibilities towards children in need.
Co-operation between authorities
Where a homeless child is in the area of an authority after being placed there (together with their family) by a different authority under homelessness legislation (an 'out-of-area placement'), the two authorities should co-operate to ensure that the child's needs are properly assessed and services provided.
Where a homeless family placed in the area of another authority has been found intentionally homeless, it remains the duty of the 'placing' authority to provide accommodation (under the duty to intentionally homeless families) pending the outcome of the child in need assessment.[18]
London authorities
Guidance given to London authorities requires them to 'develop and support a culture of joint responsibility and provision for all London children (rather than a culture of 'borough services for borough children').[19] This guidance gives detail on matters such as timescales for responding to the referral of a child in need to social services.
Dependent children living with their families
A local authority has an ongoing duty under section 17 to safeguard and promote the welfare of children in need and, so far as it is consistent with that duty, to promote the upbringing of such children by their families.[20]
Following the outcome of a number of judicial review cases examining the role of local authorities under the Children Act 1989,[21] the Adoption and Children Act 2002 was implemented. It amended section 17 of the Children Act 1989 to make it clear that social services do have powers (but not a duty) to provide housing assistance to homeless families with children in need when they have no further entitlement or eligibility for assistance under the homelessness legislation, for example if they have been found to be intentionally homeless.[22]
The duty to provide accommodation under section 20 applies to the children only. Offering to house only the children is an option.[23] In one case in which a family had financial resources, the High Court held that it was acceptable for a local authority to offer to accommodate only the children if they did not find accommodation where they had been given a reasonable opportunity to do so by being provided with temporary accommodation for ten months and advice and information to assist them.[24]
Social services can only forcibly take a child away from their parents if there is clear evidence of a risk of abuse and a court order has been obtained.[25]
Article 8 rights
Social services has a power to provide financial assistance to a family as a whole to secure accommodation, or even to provide accommodation,[26] but it does not have to do so.[27]
Social services must consider whether any refusal to assist the child's family would contravene the child's rights under Article 8 of the European Convention on Human Rights (right to respect for the home and family life), otherwise the assessment or decision underpinning such refusal will be unlawful.[28]
The Supreme Court has held that when making an assessment of proportionality under Article 8 the best interests of the child have to be a primary consideration.[29]
Duty of care and negligence
The Supreme Court held that whether a local authority is liable to pay damages for failing to protect children in need accommodated with their family under section 17 of the Children Act 2019 from harm caused by third parties neighbours, known to the authority to have perpetrated anti-social behaviour against the family for years, depends on whether the authority specifically assumed responsibility for their safety and welfare, and therefore owes them a common law duty of care to protect them from harm caused by third parties.[30]
It is well established that a local authority owes a common law duty of care to a child who has been taken into care.[31] But in the absence of a care order a local authority does not owe a duty of care at common law merely because it has statutory powers or duties under the Children Act 1989, even if by exercising those powers or duties it could prevent harm being suffered.
However, a local authority and its social workers may owe a duty of care to protect from harm in the same circ*mstances where the principles applicable to private individuals or bodies would also impose such a duty, for example where they have created the source of the danger or assumed responsibility to prevent a person from suffering harm.
Needs assessments for young carers
Where a young person aged under 18 provides care for another person, that young carer is entitled to have their support needs assessed where:[32]
it appears to social services that the young carer may have needs for support
the young carer or their parents requests an assessment
The assessment must consider whether it is appropriate for the young carer to continue to carry out their caring role, taking into account their wishes and needs, including whether their want to work or receive education or training.
Details of how the assessment should be carried out, and the issues to which social services must have regard, are contained in regulations.[33] Social services must consider the possibility that a young carer may also be a child in need. If this is the case, social services must take appropriate action.
Once the young carer's needs assessment has been completed, the authority must decide if it will provide services to help meet any care needs that the young carer may have in relation to the support they are providing.[34]
Support for care leavers
Social services must prepare children for leaving care, assist care leavers and publish information relating to what support they offer.
People subject to immigration control
Assistance under section 17 of the Children Act 1989 cannot be provided to a person (other than to an asylum seeker in limited circ*mstances) who is in the UK in breach of immigration regulations unless refusal to assist the family would contravene that person's human rights.[35]
An authority cannot refuse to offer assistance under the Children Act pending a Home Office decision on indefinite leave to remain or on an appeal against removal directions if the person refuses to leave the UK voluntarily, unless the application or appeal is manifestly abusive or hopeless.[36]
Assistance may be given under section 20 to a child alone regardless of immigration status.
Role of Children's Commissioner
The Children's Commissioner promotes awareness of the views and interests of children in England up to the age of 18, or 21 for young people in care or with learning difficulties.[37] The primary function of the Commissioner is to promote and protect children's rights.[38]
The Commissioner is prohibited from investigating individual cases. However, any child can contact the Commissioner's Office if they have concerns about matters that affect their well-being.
Local authorities and corporate parenting principles
With effect from 1 April 2018, in carrying out any duty to a child in need, a local authority (not just social services) must adhere to corporate parenting principles.
These principles include:[39]
acting in the young person's best interests, and promoting her/his physical and mental health and well-being
encouraging young people to express their views, wishes and feelings, and taking them into account
helping those young people gain access to, and make the best use of, services provided by the local authority and its relevant partners
promoting high aspirations, and seeking to secure the best outcomes for those young people
ensuring the safety of those young people, and aiming to achieve stability in their home lives, relationships and education or work
preparing them for adulthood and independent living
