Ofsted urges action on advocacy for homeless teenagers

Ofsted has published research on the support provided to children aged 16 and 17 who are homeless. Part of this was a survey of 96 children and young people aged 17 to 24, of whom only 9% reported being offered an advocate when they first approached agencies for help. Statutory guidance states that local authorities “should provide information about access to advocacy services when they explain the assessment process to 16- and 17-year-olds seeking help because of homelessness”. That is, the offer of advocacy should come right at the start of a child’s interaction with the local authority.

Over the past 20 years, there has been growing concern that local authorities are avoiding their legal responsibilities towards homeless children aged 16 and 17, by diverting them to housing authorities. This is despite homelessness legislation being clear that 16- and 17-year-olds are not in priority need when their circumstances fall under section 20 of the Children Act 1989. Through section 20, a local authority becomes a child’s ‘corporate parent’ and has myriad parental duties towards them – during their childhood and, once they have been looked after for a period of 13 weeks, up to the age of 25 and beyond.

Section 20(1) requires that local authorities provide accommodation / look after children in need in their area who appear to require accommodation in three sets of circumstances: there is no-one with parental responsibility for the child; or the child is lost or abandoned; or the person who has been caring for the child is prevented from providing suitable accommodation or care (the reasons for this, or the duration, are irrelevant). In addition, section 20(3) places a duty on local authorities to provide accommodation for any child in need in their area aged 16 or 17 whose welfare the local authority considers will otherwise likely be seriously prejudiced. Further, local authorities have discretion, through section 20(4), to look after any child in their area when this would safeguard or promote the child’s welfare (there is no requirement that children in these circumstances fall into the definition of a child in need in section 17(10) of the 1989 Act).

 Section 20 is a voluntary arrangement between the local authority and a child’s parents (or others with parental responsibility), and 16- and 17-year-olds are entitled through section 20(11) to agree or refuse themselves to be looked after. This does not, however, trump the safeguarding duties of local authorities: child protection obligations under the Children Act 1989 apply to children up to age 18.

That children aged 16 and 17 can (legally) refuse to be looked after by local authorities makes it even more important for them to be given clear, accessible information about their rights. The statutory guidance makes it clear that in these circumstances the local authority “must be satisfied that the young person: a. has been provided with all relevant information; b. is competent to make such a decision; and c. that they do not need to take additional safeguarding action”. The landmark 2009 Southwark judgment, which confirmed beyond any doubt local authority duties towards homeless 16- and 17-year-olds, quoted from a similar case that year where Dyson LJ observed, “children are often not good judges of what is in their best interests”. To make such judgements, all relevant information must be provided to the child, in an understandable way and answering any concerns the child may have. An advocate participating in one of Ofsted’s focus groups recalled, “Most of the children are steered away from section 20 [by local authorities] and told how invasive it can be in their lives – [there’s] a lot of coercion about why they shouldn’t pick section 20. Many don’t understand what is happening, and when they do, it's too late”.

Instead of becoming looked after under section 20, a homeless child aged 16 or 17 may be provided accommodation under Part 7 of the Housing Act 1996 or via section 17 of the 1989 Act. But neither of these avenues provide children with entitlements to care, support and assistance, as a looked after child and then as a care leaver. It is therefore essential that homeless 16- and 17-year-olds estranged from their families are given clear and accessible information about the options in front of them, the reality of the children’s care system today and the possible consequences of different decision-making. Access to advocacy helps children navigate the law and unfamiliar procedures; it also equips them to challenge the assessments and decision-making of local authorities, including through obtaining legal advice and representation.

Some local authorities told Ofsted that children sometimes reject being looked after because of the perceived stigma of being in care. This points to the need for prospective corporate parents to sensitively and positively explain why parliament has passed legislation for the care and protection of children, and to seek to reassure children that being in care is not something of which to be ashamed or frightened.

A survey of children in care found that half agreed with the statement, ‘People think that it is children’s fault that they are in care’. Children’s perceptions are often, understandably, informed by media and cultural representations, which cast children in care variously as victims or villains. An online search using the terms ‘children’s home’ and ‘neighbours’ gives a glimpse of the scale of wider public ignorance and misunderstanding (and, often, vitriol). The NHS has run campaigns to encourage take-up of vital services imbued with fear and stigma (those relating to sexual health, for example); arguably, both central and local government have a similar responsibility to combat negative attitudes about the children’s care system. Local authorities should certainly not be relieved of their duties towards highly vulnerable children because a child is too scared of the consequences of coming into care.

Among Ofsted’s recommendations is a call for local authorities to “review the strength of the advocacy offer for homeless children”. At the end of 2023, the Department for Education consulted on a revised set of national standards for advocacy services, and publication of the final document is still awaited. Meanwhile, there is an opportunity through the Children’s Wellbeing and Schools Bill, currently in parliament, to make it clear that advocacy must be offered to any child for whom a local authority is undertaking a statutory needs assessment who requires assistance to access and weigh up information and express their views, wishes or feelings. That is the legal position for vulnerable adults – through section 67 of the Care Act 2014 – and it is inexplicable that children do not enjoy the same protection.