§ Ms Karen Buck (Regent's Park and Kensington, North)
I am grateful for the opportunity to raise this issue. The 35th anniversary of Ken Loach's groundbreaking documentary "Cathy Come Home" falls next month. The programme put homelessness on the post-war map by dramatically showing the effect it can have on attempts to keep families together.
A great deal has changed since that television programme was made. Indeed, it was part of the reason why changes took place. The safety net for homeless families has been strengthened considerably, most notably by the Housing (Homeless Persons) Act 1977 and, following a setback under the Housing Act 1996, the Homelessness Bill, which is going through Parliament. As I said in a debate on the Bill, it is attempting to rewrite "Cathy Come Home" with a happy ending, but, unfortunately and separately from mainstream housing legislation, two recent court decisions on the operation of the Children Act threaten to undermine some of the good work and once again raise the spectre of homelessness leading to parents facing separation from their children.
Under the 1996 Act, local authorities have a duty to provide accommodation for unintentionally homeless people in priority need, but where families with children are not to be housed by a housing department the Children Act provides a further safety net, which is particularly important when families are found to be intentionally homeless. Approximately 9,000 households are found to be intentionally homeless every year; the majority are families with children.
Decisions on intentional homelessness are notoriously complex. Shelter's experience is that local authority intentionality assessments are often harsh—I can bear out that experience from my case load—and in many examples inadequate. Housing aid centres often successfully overturn assessments when they can prosecute cases to conclusion. In addition, some authorities apply the letter of the law so strictly that households may be found intentionally homeless in circumstances that appear unjust. For example, a family may experience unexpected financial difficulty and sell their home to avoid falling into debt.
The consequences of being found intentionally homeless are severe. The household are given only limited time in temporary accommodation—usually about 28 days—and are often barred from the housing register. In such circumstances, their options are likely to be extremely limited. Private sector accommodation requires a deposit and rent in advance—resources that are beyond the reach of many homeless households. Again, I have extensive constituency experience of such difficulties.
The Children Act provides an important means to secure vital assistance for families with children when the housing department is not under a duty to house them. Families are often given assistance by social services authorities under section 17 of the Act. For example, help with a deposit or the rent is provided or, in some cases, accommodation, which may also be provided under section 20, is offered.
115WH Although the combination of the duties placed on housing departments under the homelessness legislation and the powers available to social services under the Children Act has provided a reasonably satisfactory, though far from perfect, safety net for homeless families with children, the nature of the obligations on social services authorities under the Act has been considered in two recent cases.
The Court of Appeal decision of 11 April 2001 on the application for judicial review by G found that section 17 merely confers a power rather than a duty for local authorities to provide assistance and that the duty to provide accommodation under section 20 is one to house the child, not the parents with the child. The High Court reiterated that judgment in A v. London Borough of Lambeth on 25 May 2001. The decision was reconfirmed in the Court of Appeal on 5 November.
The decision of the courts in those cases is likely to have a significant impact on homeless families seeking assistance in finding accommodation from social services authorities. As a result of the judgments, social services authorities are likely to provide help in far fewer cases. When help is provided, it is much more likely to be an offer to house the children, without their parents, under section 20. It will be an offer to take the children into care.
In my judgment, that severely undermines the central principles of the Children Act: that the needs of the children are paramount and that families should be kept together wherever possible. Parents will clearly not want to be separated from their children and, in practice, it is likely that families confronted with a social services offer to take a child into care will search desperately for other alternatives to stay together, no matter how inadequate or short term.
I am conscious of the fact that such threats and pressure may be a salutary experience for families that get into difficulties with rent or mortgage arrears or whose older children become involved in antisocial behaviour, but, when the final penalty is applied and the families are effectively homeless and without further call on public support having exhausted their various options, it can lead to a rapid deterioration in family circumstances.
The result may be that families sleep on friends' floors, often in highly overcrowded and volatile circumstances, and I have experience of families and children sleeping in cars. Furthermore, enhanced mobility makes it difficult to track families, particularly those with younger children. I do not want to overplay the situation, but the Victoria Climbie inquiry shows the dangers for that small minority of children who fall through the service net. Such mobility may lead to teenage boys and girls drifting into casual arrangements with friends or girlfriends, which are unsuitable in terms of minimising the risk of becoming involved in unfortunate circumstances such as unplanned pregnancy or antisocial behaviour.
I accept that parents may be at fault and that some intentionality decisions are justified according to the letter of the law, but that does not justify the unacceptable risks arising for families from the removal of all the legislative safety nets.
I refer briefly to a letter sent to me by ATD Fourth World following the recent article on the issue in The Observer. It makes a point that I agree with: 116WHMost of the families we work with have had experience of being in care as children … again and again we see evidence that the deeper the poverty of the family, the wider the range of disadvantages they struggle with, the more likely they are to lose their children rather than get long term help and support to stay with them.I shall run through cases that have come to Shelter's attention as a result of the recent judgments. One involves a family with children aged six, 10 and 13. There were no health or child protection issues and the household were found to be intentionally homeless because of rent arrears. They stayed with in-laws until asked to leave and they then approached the homeless persons unit, which refused to assist. They slept on the streets for a night and returned to the homeless persons unit, which referred them to social services.
Social services said that no help could be provided for the family as a whole and offered to take the children into care. Shelter contacted the social services department to arrange an assessment under the Children Act. The parents called back the next day to say that they had been refused additional assistance. At that point, Shelter lost contact with the family. That is exactly the risk of vulnerable families falling through the net to which I referred.
The second case involves a woman with mental health problems stemming from being sexually abused as a child. She brought her assured shorthold tenancy to an end because she could no longer afford the rent. She has two children aged 15 and 10, and the youngest, who attends a special needs school, has learning difficulties. They approached the local authority for assistance under the homelessness legislation and were placed in hostel accommodation for a month.
The family were then found to be intentionally homeless—a decision that was upheld on review—and they applied to the social services authority for assistance under the Children Act. It offered accommodation for the children only when the hostel accommodation was no longer available. The woman refused the offer.
The housing department has sought possession of the family's hostel accommodation. With representation from Shelter, the possession order has been delayed for six weeks, and a judicial review is now under way against the social services authority. Although the opinion of the health authority community care team is that the mother is vulnerable and in need of on-going support, and that her condition is being exacerbated by uncertainty about her housing and fear that her children will be taken into care, the recent court decisions mean that the prospect of success is weak.
Another family, with two children aged six and three months, were refused assistance by the housing department. They stayed secretly in a friend's room in a single person's homelessness hostel. The hostel found out, and asked them to leave. They sought advice from Shelterline, which arranged for them to be referred to social services for an assessment under the Children Act. Social services responded by offering to take the children into care. Although the mother was still breastfeeding her three-month-old baby, they told the Shelterline adviser that separating the children from their parents was not against their best interests, and no further assistance was offered.
117WH Shelter has been involved in other cases. I am currently dealing with two. On Friday, the mother of an 11-year-old was told to leave her homelessness accommodation. I do not query the validity of the intentionality decision; I do not know whether it is correct or not. What I do know is that the mother refused a review, and then consulted me on the day on which she was due to leave. I have reason to suspect that anyone who refuses a review in such circumstances is confused and vulnerable, and in need of a high level of assistance.
Another case involves the mother of five sons, two of whom, regrettably, have been involved in serious antisocial behaviour. The family face eviction, and an offer has been made for the three youngest children to be taken into care by social services. I have no doubt that the family are likely to end up sleeping casually and with friends in the area where the antisocial behaviour was occurring, and that the proposal will not offer a long-term solution.
A number of people have written to me since The Observer article, pointing out that part of the problem is that it is becoming increasingly difficult for families on housing benefit or low incomes, and particularly families with a chequered housing history, to gain access to private rented accommodation. Alternative provision, particularly in London and the south-east, simply does not exist.
I raised these issues in July, in the Standing Committee considering the Homelessness Bill. In last week's Second Reading debate in another place, they were raised by several peers. Lord Falconer said that the Government took the matter very seriously and were giving it careful consideration, and that he intended to meet representatives of local authorities and social services and report what they had said. I am sure that he is doing that, and I welcome the seriousness with which he is taking the issue.
I have had my own conversations with representatives of local government and social services, who have described court decisions on the Children Act as retrograde steps. They have also made important points about the resource implications for hard-pressed social services departments.
I know that the problem is being addressed. My aim is to push things further, especially in the context of legislation currently being considered in Parliament. I believe that sections 17 and 20 of the Children Act, which have been called into question by the courts, should be amended to strengthen social services' duty to give assistance to homeless families with children. Guidance should not be sufficient. In the case of R v. Lambeth Borough Council ex parte A, Lord Justice Laws said:The guidance is not a legal resource for the construction of the statute".Guidance therefore will not be sufficient. I hope that if the Homelessness Bill cannot be amended—and we were advised that such amendments would be outside its scope—an amendment can be tabled to the Adoption and Children Bill, which is currently before a Special Standing Committee in the House of Commons.
118WH The court cases have thrown up a serious issue that particularly affects vulnerable families at a time of nothing less than housing crisis, especially in London and the south-east. It is essential for the Government to use whatever opportunities are available to close the loophole.
I am grateful for the opportunity to raise the matter, and I look forward to the Minister's reply.
§ The Parliamentary Under-Secretary of State for Health (Ms Hazel Blears)
I welcome the chance to discuss this important issue. The debate is timely, because these matters are at the forefront of our minds following the recent Court of Appeal judgment—referred to by my hon. Friend the Member for Regent's Park and Kensington, North (Ms Buck)—in the case of A v. London Borough of Lambeth. We all agree that our social legislation should provide an adequate safety net for the most vulnerable members of the community.
The Children Act 1989 remains extremely important to the establishment of such a safety net. The Act, its accompanying regulations and the associated volumes of guidance cover all statutory care of children in England and Wales. The Act created a comprehensive framework of powers and duties for local authorities with social services responsibilities, to ensure that children receive the care and protection that they need. It promotes co-operation among the various statutory agencies and among professionals to safeguard and promote the welfare of children, and imposes a range of responsibilities on local authorities for the care and protection of children and young people under the age of 18.
My hon. Friend drew particular attention to issues raised by sections 17 and 20. Section 17 requires local authorities to promote and safeguard the welfare of children in their areas who are in need and, so far as is consistent with that duty, to promote their upbringing within families. It gives authorities a range of powers that they can exercise to fulfil that duty. They can, for instance, assess children's needs, provide assistance in kind or in cash, and arrange for others to provide any necessary services. Section 17 also makes clear that assistance can be given to the family of a child in need—my hon. Friend referred to that important point—or to any member of the family, as long as it is intended to promote or safeguard the welfare of the child. A connection must be made: the main consideration must be the child's welfare, but if in the fulfilment of the child's needs it is necessary to assist the family, section 17 allows that.
The Act and, more recently, the legal judgments from which my hon. Friend's concerns stem make clear that the section 17 duty is not a specific duty relating to the needs of an individual child, but a general duty. Local authorities must meet the needs of children in their areas. They must provide a range of services that promote and safeguard the welfare of all children in need, but those services do not have to be perfect for each child. Authorities have no legal obligation to address the needs of individual children in any particular way.
Under section 20, however, authorities have a duty to individual children in need. It is, specifically, to provide them with accommodation if they have no parents, or if 119WH those who have been caring for them cannot give them suitable accommodation and care for whatever reason. That safety net is probably used most often by local authorities to accommodate disabled children for short periods, allowing their families a respite from their caring responsibilities, but it can also be used as a support by homeless parents, giving them time to find suitable accommodation without having to worry about their children's safety in the meantime.
I know that my hon. Friend is very concerned about the effects of recent court judgments. Officials in my Department are still considering them carefully, particularly the one that my hon. Friend mentioned most—the A v. Lambeth Borough Council judgment, handed down only on 5 November. These are clearly important cases that will have far-reaching effects, and my hon. Friend has done us all a service by drawing their implications to our attention.
The case of G v. London Borough of Barnet defined section 17 duties more specifically. It made clear that once an offer of help under the section had been rejected—provided that accommodation for a child was available under section 20 and the offer of help under section 17 remained open—a local authority was under no obligation to offer a different form of help, although its offer might not be entirely what the family wanted. When an authority has made an offer of help under section 17, it has a fallback under section 20. If a family chooses not to accept the offer, the authority has met its legal requirements.
The finding of the High Court in the second case again confirms that the section 17 duty is a general duty. However, the judgment of Sir Philip Otton and Lord Justice Chadwick went rather further than the matters being considered by the court. They concluded that section 17 did not encompass, or give powers in relation to, the provision of accommodation. I believe that in the past some authorities have used section 17 as a permissive power enabling them to give families accommodation, perhaps on a short-term basis—despite having no legal duty to do so—when that has been judged to be in the best interests of a child in need. The worrying part is that, if the A v. London Borough of Lambeth judgment were to hold, there would be no such power under section 17, which could limit the actions of local authorities. As I say, officials in the Department are considering the judgment extremely carefully to ascertain the implications of the comments by Sir Philip Otton and Lord Justice Chadwick.
Before April this year, housing authorities that had assessed a family as intentionally homeless sometimes told local social services that there might be one or more children in need in the family. Social services would then carry out an assessment of the needs of the children. It might end up housing the family, sometimes in less than satisfactory bed-and-breakfast or hostel accommodation. There is a desperate shortage of housing, certainly in the London area, so accommodation is hard to come by. That is not always the case in other parts of the country, as my hon. Friend is aware. Indeed, in the area that I represent, there is a surplus of accommodation, but I recognise the stresses in London and the south-east area.
Housing people in bed-and-breakfast or hostel accommodation and carrying out assessments took up a great deal of social services' time and often did not result 120WH in a satisfactory solution for the families concerned. I am pleased to be able to tell my hon. Friend that, perhaps as a welcome spin-off from some of those judgments, some local authorities are trying to work far more constructively with intentionally homeless families in their area. The London borough of Lambeth has taken the view that the clarification of roles between local authority housing departments and local authority social services departments has given it a fresh opportunity to provide intentionally homeless families more effective help in securing long-term accommodation. Rather than providing short-term, unsatisfactory solutions, they have been working together to support families in some of the difficult areas that my hon. Friend has mentioned such as access to private sector housing, where there is a need for initial deposits and sometimes a need for extra financial assistance. Lambeth council has appointed three specialist workers to provide advice, assistance and support to those families as well as advice from the housing department.
I understand that so far the borough has supported at least 30 families in finding long-term accommodation and securing financial assistance for the initial deposit and the first month's rent.
§ Ms Buck
I am impressed by that example. I congratulate the London borough of Lambeth on its work. Does my hon. Friend not agree that, if that example were followed to its conclusion, homeless families would face a postcode lottery in terms of the quality of service? If they were lucky enough to reach the end of the road, as it were, in a borough that had developed a positive strategy, that would be excellent, but many local authorities have simply not made such provision. Families could end up in the worst possible circumstances without a legislative framework or good local authority practice.
§ Ms Blears
I accept my hon. Friend's point that provision of a range of services for local communities varies from local authority to local authority. She has highlighted examples of families who have found themselves in extremely unsatisfactory circumstances, such as sleeping in motor vehicles and on the floors of friends' houses. We do not want vulnerable children in need to be placed in that position as a result of current circumstances.
Since April this year, Lambeth has worked with 50 intentionally homeless families. Although I am aware that Shelter has expressed concern that more children will be taken into care and accommodated by local authorities as a result of the current situation, Lambeth has not had to accommodate any more children as a result of the current legal interpretation of its statutory powers and duties. In fact, it has been able to provide better care.
We hope that local authorities across the country will begin to develop such services to support people. That is why, as my hon. Friend has said, discussions are going on with the Association of Directors of Social Services and local authorities across the piece to try to gather information on the way in which procedures may have changed as a result of the judgments. We need to map out the practices that local authorities are adopting as a 121WH result of the judgments that might lead them to make decisions different from those that they would have made previously.
Lord Falconer, with officials from the Department of Health, is meeting directors of social services next week to discuss those issues. We are writing to Shelter to ask it to let us have full details of any examples. Obviously, we will take on board the examples that my hon. Friend has highlighted, so that we can gauge the extent of the problem. Officials in the Department will then meet Shelter to discuss taking up those matters.
We will consider the judgments very carefully, especially the judgment of 5 November, in terms of the powers under section 17. We will then decide whether any action needs to be taken and, if so, what would be most appropriate. The amendment of primary legislation, both the Children Act and the housing legislation, has already been suggested. Although I accept that my hon. Friend does not feel that guidance would be sufficient to amend the situation, it is an option that is open to us. We want to study the judgment and examine what effect it is having in the field. We want to find out whether local authorities are deciding to change their practices. We shall certainly encourage the type of scheme that Lambeth and other authorities are beginning to establish. It is far better if families with vulnerable children in need can be assisted to find long-term sustainable solutions, rather than provided with short-term unsatisfactory ones.
§ Ms Buck
Part of the problem is that the definition of children in need is itself subjective. My view is that part of the problem is that children may not be deemed to be in need at the beginning of the Children Act process before becoming homeless, but that the homelessness process tips them over into being vulnerable and in need. Living in the circumstances that I have described or in hostel and bed-and-breakfast accommodation is virtually equivalent to defining a child as being in need, 122WH and has serious consequences for the child's health, educational performance and behaviour. That wider context also needs to be borne in mind.
§ Ms Blears
I accept what my hon. Friend says. I have met many families who face a series of issues, which multiply and create a huge layer of deprivation, poverty and difficulties. It is very difficult for families in such circumstances to see a way out and to look at their future.
My hon. Friend has highlighted one of the key difficulties for all of us—striking the right balance. Access to social services must not be used almost in direct contravention of our housing policy. Where people are intentionally homeless as a result of their actions—for example, serious antisocial behaviour—they should not seek recourse simply to social services and end up being rehoused perhaps two or three doors away from where they committed the antisocial behaviour.
I am aware that that has happened occasionally, and it has caused immense distress to the wider community. Although I accept that the priority is children who are in need and who are vulnerable through no fault of their own because of family circumstances—we as a society have a fundamental duty to meet the needs of those children—we must balance that with the needs of the wider community and other families.
Resources are limited. Local authorities are under immense pressure to find appropriate and adequate housing solutions for many people. Certainly in the London area, there is a shortage of housing. Trying to strike the right balance between all the people who need support and proper housing—housing is a fundamental platform from which people manage to organise the rest of their lives, whether it be work, training or employment—is very difficult, but we undertake to study the judgments extremely carefully, look at their implications, and see what needs to be done. However, overall, our top priority must be to ensure that those vulnerable children in need receive the protection and care of all of us.