A first for London: Hammersmith and Fulham making life easier for care leavers. But more radical change at national level is urgently needed.

Hammersmith and Fulham has become the first London local authority to exempt care leavers from council tax payments until they reach 25. This news has been rightly welcomed by campaigning groups such as the Children's Society and Article 39.  Research has consistently demonstrated that young people in and leaving care are a particularly vulnerable group.  Children may be taken into care or accommodated under s. 20, Children Act 1989 for a range of reasons - abuse, neglect, their families struggling to cope - and so they are likely to be highly vulnerable when they enter the care system in the first place. They are then likely to experience instability and a number of moves between placements which can seriously disrupt their education and damage further their ability to form bonds with care-givers - see, for example, the experience of Ben Ashcroft described in his powerful book 51 Moves.  These experiences have a lasting effect on care leavers into their adult lives.  They are disadvantaged and experience significantly poorer outcomes than their peers - they are more likely to become homeless, to spend time in prison, to have mental health problems, to be unemployed, and there are stark academic differences (only 11% of children in care gain five GCSEs, compared to the national average of over 60%). They are also much more likely to move to independent living at an earlier age than their peers, and they often do not have good support networks in place, for financial and other assistance if they are struggling with the transition to independence.  They struggle to cope financially and have to learn how to budget.

Given this backdrop, it is not surprising that Sam Royston, policy director of the Children's Society, has welcomed Hammersmith and Fulham's announcement, saying:

“To expect some of the country’s most vulnerable young people to start paying council tax just days after leaving care is setting them up to fail.  Without the family safety net that most children benefit from as they become adults, many new care leavers struggle to open a bank account, let alone juggle their household bills and plan financially for the long-term.  We urge other councils across the capital to follow H&F’s lead and give care leavers a better chance of a fair start in life.”

My view is that: 

1. Hammersmith and Fulham's policy change should be welcomed - not least because this is a local authority which has been criticised in the relatively recent past for its failure to comply with its Children Act 1989 duties to children in need and care leavers - see, for example the leading case of R (M) v LB of Hammersmith and Fulham [2008] 1 WLR 535, and, in a different context, more recently my Doughty Street colleague Ben Chataway's case of R (YA) v LB of Hammersmith and Fulham [2016] EWHC 1850 (Admin).  This is one of a number of steps which it is taking to provide better support to care leavers, despite swingeing cuts to its funding from central government over the last few years.      

2. Exempting care leavers from council tax payments to the age of 25 is a step which should be taken by other local authorities, following in Hammersmith and Fulham's footsteps.

3. However, we should not overstate the significance of this.  Substantial changes to the legal rights of care leavers and the legal duties owed to them by local authorities over almost two decades have done little to dent the depressing statistics about their life chances and outcomes.  Far more radical change is needed, at a national level.  This should, in my view, include: 

(a) funding for local authorities to improve the support provided to children when in care or s. 20 accommodated (including securing more stability and minimising the number of moves) and to care leavers; and 

(b) it should also extend to strengthening and extending the 'staying put' provisions, introduced on a limited and weak basis in 2014, stopping the automatic cut-off which sees many 18-year-olds abruptly moved from care and into independent living on their 18th birthdays.

Legal Changes for Care Leavers

Much has been done in the past 17 years to improve outcomes for care leavers, since the Department of Health’s consultation on how to improve the life chances of those who had been in care or looked after for a substantial period of time as children.  The 1999 consultation paper was poignantly entitled, Me, Survive, Out There?, a phrase taken from a poem written by a 15-year-old girl about her panic at the prospect of being cut loose from children’s services on her sixteenth birthday.  Extensive changes were made in 2000-2001, introducing the 'Leaving Care regime' (the Children (Leaving Care) Act 2000; Children (Leaving Care) (England) Regulations 2001; and associated guidance). As Baroness Hale later put it in R (G) v Southwark LBC [2009] 1 WLR 1299, [8], the general aim of the Leaving Care duties is to, "provide a child or young person with the sort of parental guidance and support which most young people growing up in their own families can take for granted but which those who are separated or estranged from their families cannot."  

But serious problems persisted, despite these extensive changes.  Detailed research in 2006 demonstrated that children and young people continued to be at sharply heightened risk of homelessness soon after leaving care; continued to have low educational attainment, with the majority leaving care without any qualifications; and that the majority failed to establish a stable pattern of education, training or work in the early years after leaving care[1] – precisely the problems which the 1999 consultation paper and 2000 scheme were intended to address.  A further consultation paper was issued in 2006, a White Paper in 2007 (which focused on children in care, but also recommended some changes to the Leaving Care regime), and in November 2008 Parliament passed the Children and Young Persons Act 2008, which further amended the Children Act 1989 by extending support for young people in and leaving care. The suite of guidance regarding care-leavers was revised in October 2010 and came into force in April 2011.  In 2012, the then Children and Families Minister launched a Care Leavers’ Charter, which his department described as "set[ting] out how care leavers should be treated and the support they should expect to receive from their local authority. It also recognises the unique challenges facing young people leaving care, such as moving into their first home as an independent adult, and points to the practical support they need."   In March 2014 the department proudly announced that 123 councils had signed this Charter, but also published more figures, showing that disadvantages for care leavers persist:

• over 1,100 care leavers aged 16 or over were living in independent accommodation without any formalised support;
• 34% of care leavers aged 19 or over are not in education, employment or training;
• just 6% of care leavers aged 19 or over went on to higher education.

Legal Changes Not Having Sufficient Impact

Despite these significant and important legal changes to the rights of care leavers and the duties of local authorities over the 17 years which have passed since the 1999 consultation, it is unfortunately clear that they have not had as much impact as had been hoped.  The statistics on increased risks of homelessness, unemployment and imprisonment remain stubbornly similar, as do the statistics about educational attainment.  There are many reasons for this, including a mismatch between the legal duties and local authorities' compliance - see, for example, the description by Munby J (as he then was) in R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin), [39] of the "catalogue of failings" towards our care leaver client by the local authority in that case as "depressing," given the decade that had passed since the 1999 consultation process, and the three years that had passed since the landmark Caerphilly case.  Cuts to local authority budgets have not assisted compliance - far from it.  I have seen many similarly depressing examples in the past 24 months of flagrant breach of the Leaving Care obligations (including failure to appoint independent Personal Advisors, no Pathway Plans, and so on) which are linked to resource constraints.

More Radical Change Needed, at National Level

If the government is serious about changing outcomes for care leavers, it must do far more than 'encourage' local authorities to sign up to a non-binding Charter, or even introduce new legal obligations without funding to ensure they will be met.  Two important steps are, first, to provide funding for local authorities to improve the support which they can give to children when in care or s. 20 accommodated (including securing more stability and minimising the number of moves) and to care leavers.  Statements about commitment to care leavers are meaningless unless accompanied by funding to support real change.  

Second, there has been one recent potentially very significant change: since April 2014, children who are in foster care are allowed and supported to remain with their foster carers until they are aged 21, rather than having to leave abruptly at 18 ('Staying Put').  This is a well-intentioned change, and a definite step in the right direction.  1,560 care leavers availed of this in 2014, and c. £40m in central government funding has been committed to the Staying Put scheme over 3 years.  

However, although hugely significant, its terms are weak and limited: 

• Weak, because given restrictions this is a potential benefit only for a select few: those in stable placements at 18, whose foster carers can afford it.  Affordability is critical, because the rates foster carers are paid by local authorities after a placement changes to a Staying Put arrangement are significantly reduced, which acts as a disincentive. Local authorities say that the money allocated by central Government is not sufficient; and many local authorities still do not have Staying Put policies in place.  The scheme also differs to the approach most reasonable parents would take with young adults remaining at home - for example, there is a requirement that the young person is charged once s/he begins work, limiting his or her ability to save for the eventual move to independence.
• Limited, because it applies only to care leavers who have been in foster care, and not to those in residential care, such as children's homes, or in independent or semi-independent living at 18.  As the campaign group Every Child Leaving Care Matters (ECLCM) points out, "arguably the residential sector cares for possibly the most vulnerable and disadvantaged young people who may be unable, or indeed choose not to be fostered" and so particularly vulnerable care leavers are excluded from its terms.  ECLCM and the Care Leavers' Association are right to argue that this change is too restricted and not enough.  If you agree with these concerns, please do consider signing ECLCM's petition. 

What Next?

As lawyers and campaigners who specialise in this field, we should welcome Hammersmith and Fulham's decision not to charge council tax to care leavers until they reach 25.  This is very good news and certainly a step in the right direction. We should ask other local authorities to follow suit.  But if we are serious about securing real change for this very vulnerable group of children and young people, we must continue - despite legal aid restrictions - to challenge local authorities who fail to comply with their current legal obligations to care leavers, and we must press for more radical changes at a national level, starting with increased funding, and extending the Staying Put scheme.  

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[1] J Wade and Dixon, ‘Making a home, finding a job: investigating early housing and employment outcomes for young people leaving care’ (2006) 11 Child and and Family Social Work 3, pp. 199-208.