Young people and homelessness mediation 2006

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Young people and homelessness mediation 2006

In this court of appeal case, judges criticised a local authority for using mediation to delay assessing a seventeen-year-old’s homelessness application until she was eighteen, and no longer in priority need.

Background
Young people aged 16 and 17 are automatically in priority need for housing purposes, and current legislation requires that if local authorities have reason to believe that an applicant may be homeless and in priority need, then they have a duty to provide temporary accommodation while the case is assessed. However, the local authority has no duty to permanently house them if they are ‘intentionally’ homeless.

Leaving home may result from disputes with parents, a desire to live alone or the risk of violence or abuse. The Homelessness Code of Guidance (section 12.7) issued by the Department for Communities and Local Government (DCLG) on July 24th 2006 states that “generally it will be in the best interests of 16 and 17 year olds to live in the family home, unless it would be unsafe or unsuitable”, and the code encourages the use of mediation to promote this.

Local authorities and homelessness mediation
Many local authorities have introduced mediation schemes, often contracted out to local NfP community or family mediation providers. Mediation is intended to bring the young person together with their family to explore whether it is possible to negotiate a safe and sustainable return home. Organisations like Alone in London have found that mediation can be effective in improving communication and restoring relationships, and that with ongoing support for the family from a caseworker some young people can return home.

However, local authorities have a number of targets to meet. As well as aiming to reduce the number of homelessness applications, by 2010 they also aim to reduce the number of people in temporary accommodation by 50%. Many local authorities have found that introducing mediation at an early stage of the homelessness application process is effective in reducing both – and not always for reasons which are in the best interests of the young people concerned.

Robinson v Hammersmith and Fulham London Borough Council
In this case a 17-year-old applied for housing to her local authority after her mother had asked her to leave the family home. She approached the local authority on February 17th 2005, and her 18th birthday was on March 11th that year. The local authority initially told her that it would take 28 days to assess her application, by which time she would be 18 and no longer in priority need. After advice from a law centre, she re-applied, and was given interim accommodation while the local authority arranged a mediation appointment for the girl and her mother. Two days before her 18th birthday her mother refused to mediate, and on the following day the local authority decided that the girl had no priority need, and told her so on the phone. They delayed sending the written reasons until the next day, when she was 18.

The girl asked for an internal review, which supported the local authority. An appeal to the county court found that the delay by the local authority was justified in order for mediation to be attempted. However, the court of appeal found that the local authority’s decision that she was not in priority need was unlawful, as the girl was not 18 at the time. In particular, the court was critical of the local authority for using the attempt at mediation to justify delaying their decision, in order to avoid their housing responsibilities.

Lord Justice Waller: In my view it cannot be right that an authority can persuade a family into mediation while a child is 17 and then use the time that the mediation would take to deprive the child of a right that it would have had without mediation.

Lord Justice Parker: It goes without saying that mediation is an enormously valuable tool in the resolution of problems of homelessness. However, the process of mediation is not to be confused with the duty of a local housing authority under section 184 of the Act to make inquiries as to what (if any) duty it owes to an applicant under Part 7 of the Act. In my judgment, the process of mediation is wholly independent of the section 184 inquiry process.

Notes for advisers
Despite much good practice in this area, ASA does have some concerns about the use of mediation for young people making homelessness applications:

Often, mediation is offered at a very early stage, before an application for temporary accommodation is made. In effect mediation is not being used as a way of promoting the best interests of the young person, but of delaying or preventing local authority housing responsibilities. This is illustrated in the case of Robinson v Hammersmith and Fulham London Borough Council outlined above.
In some local authorities there is inadequate consideration of whether or not mediation is appropriate before the local authority refers the case to the mediation provider – where violence or abuse is reported, this needs very careful and sensitive handling.
One of the core definitions of mediation is that it is offered by a neutral third party, who has no stake in the outcome of the mediation. Where mediation providers are funded by the local authority, it is hard for them to remain entirely neutral: their continued funding may depend on how effective they are at helping the authority to meet its targets to reduce homelessness applications and numbers of people in temporary accommodation.
Another core definition of mediation is confidentiality. In some local authorities mediators report back the outcome of mediations to the local authority, and the information they provide is being used to assess whether or not homelessness in such cases is ‘intentional’.

The DCLG Code makes it clear that local authorities must not avoid their obligations to young people but the continued promotion of mediation in this context raises questions that need further thought and more evidence.