This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Children in need

This content applies to England

Social services' duties to children in need under the Children Act 1989.

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. For details see Accommodation under section 17

There is a further duty under section 20 to accommodate certain children in need in their area. For details see Accommodation under section 20

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]

  • s/he is 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
  • her/his health or development is likely to be significantly impaired, or further impaired, without the provision for her/him of such services
  • s/he is 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 circumstances change. This will require 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] For information on asylum-seeking children, see Help for ineligible children and families. Being at risk of radicalisation should be included in the range of factors relating to a child's welfare, and therefore to whether or not s/he is a child in need.[8]

Statutory guidance, Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation, 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 circumstances.[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 will also be 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 s/he is 'ordinarily resident' in the area.[13]

If a child is present in more than one authority's area, for example if s/he is 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 authorities

See Cooperation between departments for information on how different departments within the same local authority should work together.

Where a homeless child is in the area of an authority after being placed there (together with her/his family) by a different authority under homelessness legislation (an 'out-of-area placement'), the two authorities should co-operate with one another in ensuring that the child's needs are properly assessed and services provided. See the page Cooperation with other agencies in the homelessness applications section for more information.

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] See Assessment criteria for suitability: location for information on out-of-area placements.

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 instance if they have been found to be intentionally homeless.[22] See the page Families with children for more information.

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 her/his parents if there is clear evidence of a risk of abuse and a court order has been obtained.[25]

See Accommodation under section 20 for more information.

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] However, 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] While 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] 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 circumstances 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.

Young carers' needs assessment

Where a young person aged under 18 provides care for another person, that young carer is entitled to have her/his support needs assessed where:[32]

  • it appears to social services that the young carer may have needs for support
  • the young carer or her/his parent(s) requests an assessment.

The assessment must consider whether it is appropriate for the young carer to continue to carry out her/his caring role, taking into account her/his wishes and needs, including whether s/he wants 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, and if this is the case, 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 s/he is providing.[34]

Care leavers

For information on assistance for care leavers under the Children Act, see Leaving care provisions.

Persons 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 circumstances) 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/appeal is manifestly abusive or hopeless.[36]

Assistance may be given under section 20 to a child alone regardless of immigration status.

For more information on assistance for migrant children, with or without their families, see the section Help for ineligible children and families

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 Commissioner is prohibited from investigating individual cases, however, any child can contact the Commissioner's Office if s/he has concerns as to matters that affect her/his well-being. The primary function of the Commissioner is to promote and protect children's rights.[38]

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 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.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.17(1)(a) Children Act 1989; s.20(1) Children Act 1989.

[2] s.17(10) Children Act 1989.

[3] s.17(11) Children Act 1989.

[4] R v Northavon DC ex p Smith [1994] 2 AC 402; R (on the application of CO and another) v Lewisham LBC [2017] EWHC 1676 (Admin).

[5] R (on the application of G) v Barnet LBC: R (on the application of W) v Lambeth LBC: R (on the application of A) v Lambeth LBC [2003] UKHL 57; para 26, Working together to safeguard children, DfE, 2015.

[6] paras 3.14-3.30 Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation, MHCLG/DfE, 2018; R (on the application of (1) AT (2) AG (3) HG) v Islington LBC [2013] EWHC 107 (Admin); R (on the application of AC & SH) v Lambeth LBC [2017] EWHC 1796 (Admin).

[7] Care Planning and Care Leavers (Amendment) Regulations 2014 SI 2014/1917.

[8] A v Enfield LBC [2016] EWHC 567 (Admin).

[9] paras 57-58 and 60, Ch.1 Working together to safeguard children, DfE, 2015; see also paras 3.31-3.37 Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation, MHCLG/DfE, 2018.

[10] s.7(1) Local Authority Social Services Act 1970 and R v Islington LBC ex p Rixon [1996] EWHC 399 (Admin).

[11] Para 18, Ch 1 Working together to safeguard children, DfE, March 2015.

[12] R (on the application of E) v Islington LBC [2017] EWHC 1440.

[13] s.17(1)(a) Children Act 1989; see also R (on the application of AM) v Havering LBC and Tower Hamlets LBC [2015] EWHC 1004 (Admin).

[14] R (on the application of Stewart) v Wandsworth LBC, Lambeth LBC and Hammersmith and Fulham LBC [2001] EWHC 709 (Admin); R (on the application of AM) v Havering LBC and Ors [2015] EWHC 1004 (Admin).

[15] Ch.1 Working together to safeguard children, DfE, 2015.

[16] Framework for the assessment of children in need and their families (policy guidance), DoH and others, 2000. This guidance has been superseded by Working together to safeguard children, DfE 2015, but remains non-binding practice guidance.

[17] Para 55, Ch.1 Working together to safeguard children, DfE, 2015

[18] R (on the application of AM) v Havering LBC and Ors [2015] EWHC 1004 (Admin).

[19] London Child Protection Procedures, London Safeguarding Children Board, 5th Edition 2015.

[20] s.17(1)(b) Children Act 1989.

[21] R (on the application of G) v Barnet LBC [2001] EWCA Civ 540; R (on the application of A) v Lambeth LBC [2001] EWCA Civ 1624.

[22] s.17(3) Children Act 1989.

[23] R (on the application of G) v Barnet LBC [2001] EWCA Civ 540.

[24] R (on the application of Jalal) v Greenwich RLBC [2016] EWHC 1848 (Admin).

[25] s.44 Children Act 1989.

[26] s.17(6) Children Act 1989.

[27] R (on the application of G) v Barnet LBC: R (on the application of W) v Lambeth LBC: R (on the application of A) v Lambeth LBC [2003] UKHL 57.

[28] R (on the application of PK) v Harrow LBC [2014] EWHC 584 (Admin); R (on the application of J) v Enfield LBC [2002] EWHC 432 (Admin).

[29] ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; Zoumbas v Secretary of State for the Home Department [2013] UKSC 74.

[30] Poole BC v GN [2019] UKSC 25.

[31] Barrett v Enfield LBC [1999] 3 All E.r. 193, HL.

[32] s.17ZA Children Act 1989 inserted by s.96 Children and Families Act 2014.

[33] Young Carers (Needs Assessments) Regulations 2015 SI 2015/527.

[4] s.17ZC Children Act 1989 inserted by s.96 Children and Families Act 2014.

[35] s.122 Immigration and Asylum Act 1999.

[36] Birmingham CC v Clue [2010] EWCA Civ 460; R (on the application of KA) v Essex CC [2013] EWHC 43 (Admin); R (on the application of EAT) v Newham LBC [2013] EWHC 344 (Admin).

[37] Part 1 Children Act 2004.

[38] s.107 Children and Families Act 2014.

[39] s.1 Children and Social Work Act 2017.

Back to top