The issue of how local authorities deal with homeless 16–17-year-olds who do not want to be accommodated as ‘looked after children’ under s20 of the Children Act 1989 was recently raised again in R(W) v LB Lambeth. Joshua Swirsky acted for the local authority in the case.
Since the decision in R(G) v LB Southwark  1 WLR 1299, it has been established beyond doubt that the primary way in which such homeless young people should be accommodated is under the Children Act 1989.
However, when a 16- or 17-year-old, who has been given all the necessary information declines to be accommodated in this way, they can be accommodated under Part VII of the Housing Act 1996, as a homeless person.
Accommodation under Part VII Housing Act 1996 vs under s20 Children Act 1989
Under regulation 3 of the Homelessness (Priority Need for Accommodation)(England) Order 2002, homeless 16-17 year olds in England are automatically in priority need.
Nevertheless, there is an obvious disadvantage to a young person in not being accommodated under the Children Act 1989 as they will not become a ‘former relevant child’ on their 18th birthday and will not then receive leaving care support.
Nonetheless, many young people decline to be accommodated under the Children Act 1989 whether because they attach some stigma to it or otherwise.
Background to R(W) v LB Lambeth
The London Borough of Lambeth has for some time adopted a practice of placing homeless 16-17 year olds who decline Children Act accommodation in a form of supported accommodation with keyworkers on site to assist the young people.
W is a young person who rejected Children Act accommodation when she was 17.
After her 18th birthday she complained:
- that she had not properly been advised regarding the options, and
- that the local authority’s practice of placing young people who rejected Children Act accommodation into supported living was unlawful.
The premise for this latter argument was that the prospect of supported accommodation (ie some support as opposed to being left in general housing accommodation) might induce young people to reject Children Act accommodation on the basis that it was too intrusive, and that local authorities should present young people with a starker choice designed to persuade them to accept Children Act accommodation.
The local authority argued:
- there was nothing in any statute that rendered this practice unlawful.
- there was government guidance that supported the use of supported accommodation: Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation.
W had joined the Secretaries of State for Levelling Up and Education as Interested Parties for the purpose of this challenge.
The judicial review had the potential to cause major disruption to the local authority and to its whole approach to accommodating homeless young people.
Permission for the judicial review was granted:  EWHC 702 (Admin).
Conclusion of the judicial review
W abandoned her challenge to the local authority’s practice before the full hearing.
This was in part the result of the coming into force of the Supported Accommodation (England) Regulations 2023 SI No 416, which provide a degree of regulation for such placements.
The Interested Parties also maintained that the provision of supported accommodation was lawful.
Ultimately an agreement was reached which included a recital to the effect that W accepted that supported accommodation could be provided to a young person pursuant to a local authority’s duty under Part VII of the Housing Act 1989.
On the facts, the local authority conceded that W should be treated as a former relevant child.
The outcome was significant for the local authority as its practice, intended to do the best for vulnerable young people who might be unable to fully assess their own best interests, was no longer challenged.