Social services duty to accommodate children in need
Duty of social services to provide accommodation to certain children in need in their area who cannot live with their families.
Accommodation duty to children in need
Under section 20 of the Children Act 1989, social services must provide accommodation to certain children in need in their area. Section 20 is used to accommodate children who cannot live with their families.
Under section 20 of the Children Act, social services must accommodate a child in need who needs accommodation as a result of:
there being no person who has parental responsibility for them
being lost or having been abandoned
the person who has been caring for them being prevented (whether or not permanently, and for whatever reason) from providing them with suitable accommodation or care
In addition, social services must accommodate a child in need whose welfare is likely to be seriously prejudiced if they do not provide them with accommodation.
The duty is placed on the authority in which area the child is physically present and there is no requirement for the child to be 'ordinarily resident'.
If the child is ordinarily resident in a different local authority's area, the authority providing accommodation under section 20 may:
within three months, arrange for the child to be passed to the area where they are ordinarily resident
recoup the cost of providing accommodation from the authority where the child is ordinarily resident
A child in need will not require accommodation under section 20 if one parent or carer is unable or unwilling to provide accommodation, or cannot be found, but established care and accommodation continues to be provided by the other parent or an existing carer.
The duty under section 20 can be discharged if a child in need, who is competent to make such a decision, persistently refuses the accommodation offered. However, where there remains a need to safeguard and promote the welfare of the young person, social services should offer accommodation under section 17 until the young person either turns 18 or no longer needs accommodation.
Power to accommodate under section 20
Where it would safeguard and promote the child or young person's welfare, social services has a power to accommodate:
a child in its area, even if a person with parental responsibility can accommodate them
a young person who is aged at least 16, but is under the age of 21
A child accommodated under either of these powers is a looked-after child, and leaving care duties may arise if they are accommodated for sufficient time.
Accommodation for children in need
Accommodation provided can include various types of residential homes or any other arrangement that seems appropriate to social services. This can also include a placement in a residential specialist school in accordance with a statement of special educational needs, and private fostering (ie where the child is cared for by someone who is not their parent or a close relative) where social services have played a significant role in making the arrangements, even if the placement is with a relative.
However, it has been held that section 20 was not engaged where the arrangements were made wholly by the family, even if the local authority provided financial support in the form of an allowance to the family members accommodating the young person. This financial assistance was provided under section 17, rather than section 20, therefore the young person was not a 'looked-after child'.
Suitability of accommodation for children in need
The Children Act does not provide any guidance on the standard or suitability of the accommodation to be offered, except for relevant children (ie care leavers aged 16 or 17 who were looked after for a total of at least 13 weeks from the age of 14, and for some time after turning 16).
The local authority has a duty to ascertain a child in need's wishes and feelings regarding the accommodation and to give consideration to them. But it is for the local authority to decide where to accommodate them. Any accommodation provided must safeguard and promote the welfare of the young person.
Bed and breakfast accommodation is not considered suitable even in an emergency.
Accommodation provided by other individuals or agencies
It is essential for social services to be involved in order for a section 20 (accommodation) duty to arise under the Children Act. This is usually when a referral or approach has been made to social services.
Where a 17 year old was accommodated by the housing department under Part 7 of the Housing Act 1996 and not referred to social services for assessment under the Children Act, the court could not deem that a section 20 duty arose, even though it was clear that the young person should have been referred and, if he had been, a section 20 duty would have arisen. However, when a social worker employed by a Youth Offending Team (a multi-disciplinary team made up of health workers, police officers, probation officers, and social workers) identified a homeless 16 year old as a child in need and referred him to the housing department for accommodation, which it provided, the social worker's assessment was attributed to the social services authority and as such the accommodation was deemed to have been provided under section 20.
Voluntary arrangements by family members
A section 20 duty does not arise (and so no leaving care duties would arise at age 18) unless the accommodation was provided by the local authority, either by social services or under their auspices.
If the arrangements made by family members for the care of a child were purely voluntary (ie the authority had played not part in facilitating them) and not due to the local authority's exercise of its statutory functions or duties, then the duty did not arise.
UK Visa and Immigration (UKVI)
The provision of accommodation to a child by UKVI as asylum support could not be regarded as the provision of accommodation under section 20. However, when the failure of the local authority to provide accommodation under section 20 resulted from an erroneous assessment of a child's age and such an error came to light after the child had turned 18, the local authority could legitimately be asked to exercise its discretion to provide some assistance for 'former relevant children' which might take the form of some or all of the support available under section 23C, which it would otherwise have been obliged to provide.
Help for migrant children
Unaccompanied migrant children can be assisted by social services under section 20 of the Children Act if they are 'in need'.
An 'age assessment' may be used to determine the age of an undocumented migrant who claims to be a child.
Last updated: 23 March 2021
s.20(1) Children Act 1989.
s.20(3) Children Act 1989.
R (on the application of G) v Southwark LBC  UKHL 26; R (on the application of MS) v Hammersmith & Fulham LBC and Croydon LBC  EWHC 3895 (Admin).
s.20(2) Children Act 1989.
s.29(7) Children Act 1989; R (on the application of AM) v Havering LBC and Tower Hamlets LBC  EWHC 1004 (Admin); R (on the application of MS) v Hammersmith & Fulham LBC and Croydon LBC  EWHC 3895 (Admin).
R (on the application of C (a child) by his grandfather & litigation friend) v Buckinghamshire CC  EWHC 4072 (Admin).
R (on the application of A) v Haringey LBC  EWHC 3054 (Admin); paras 3.13(b), 3.48 - 3.50 Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation, MHCLG/DfE, April 2018.
ss.20(4) and 20(5)Children Act 1989.
s.22C Children Act 1989.
R (on the application of O (by his litigation friend Andrew Burton)) v East Riding of Yorkshire CC and Secretary of State for Education (Intervener)  EWCA Civ 196.
R (on the application of D) v Southwark LBC  EWCA Civ 182; Collins (by her litigation friend Leyden) v Knowsley MBC  EWHC 2551 (Admin); R (on the application of A) v Coventry CC  EWHC 34 (Admin).
R (on the application of SA (a child by her litigation friend SH) v Kent CC and Secretary of State for Education (Intervener)  EWCA Civ 1303; R (on the application of KI) v Brent LBC  EWHC 1068 (Admin).
O (a child by her litigation friend) v Doncaster MBC  EWHC 2309 (Admin).
s.23B(8) Children Act 1989.
s.20(6) Children Act 1989; paras 3.38 to - 3.50 Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation, MHCLG/DfE, April 2018.
R (on the application of S) v Sutton LBC  EWCA Civ 790; R (on the application of Liverpool CC) v Hillingdon LBC  EWCA Civ 43.
para 5.10 Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation, MHCLG/DfE, April 2018.
R (on the application of M) v Hammersmith and Fulham LBC  UKHL 14; R (on the application of TG) v Lambeth LBC  EWCA Civ 526.
R (on the application of M) v Hammersmith and Fulham LBC  UKHL 14.
R (on the application of TG) v Lambeth LBC  EWCA Civ 526.
R (on the application of T) v Hertfordshire CC & Derby CC (Interested party)  EWCA Civ 1108.
R (on the application of GE (Eritrea)) v (1) Secretary of State for the Home Department (2) Bedford BC  EWCA Civ 1490.