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Homeless Children & Allocations

We are reminded by Shelter that 100,000 children will be homeless this Christmas. The Children Society reports that 12,000 16 or 17 year olds have to approach their local authority every year because they are homeless. Unfortunately, the last 12 months continues to show that our most vulnerable are still being failed. The first part of this newsletter reviews three key decisions of this year in this area and the principles that have been developed.

Since the decision of the House of Lords in R (on the application of Ahmad) v Newham LBC [2009] UKHL 14 it has been difficult to challenge an allocation scheme of a local authority. However, the last 12 months shows that legitimate challenges can still succeed. The second part of this newsletter therefore considers the recent successful challenges of allocations schemes.
Summary
  • The three decisions of significance concerning children in a housing context that are considered in this newsletter are:
  • Nzolameso v Westminster CC [2015] UKSC 22 (suitability of out of borough placements and s11 of the Children Act 2004).
  • Mohamoud v Kensington & Chelsea RLBC [2015] EWCA Civ 780 (public law defences to possession proceedings and s11 of the Children Act 2004).
  • R (AM) v Havering LBC [2015] EWHC 1004 (local authorities failing to comply with their duties under ss17 & 20 of the Children Act 1989).
  • The two decisions of importance in relation to Part VI of the Housing Act 1996 allocation schemes are:
  • R (HA) v Ealing LBC [2015] EWHC 2375 (an unlawful residency eligibility requirement).
  • R (Alemi) v Westminster CC [2015] EWHC 1765 (unlawful suspension of bidding for social housing for those satisfying the reasonable preference criteria).

The 3 Children Cases
  • Central to the first 2 of the 3 cases that are referred to is s11(2) of the Children Act 2004. This reads as follows: "Each person and body to whom this section applies must make arrangements for ensuring that- (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in discharge of their functions are provided having regard to that need.
  • In Nzolameso v Westminster CC [2015] UKSC 22 a local housing authority attempted to discharge the main homelessness duty that it owed under s193 of the Housing Act 1996 by offering the appellant, who had medical problems and was a single mother of 5 children, accommodation in Milton Keynes. A challenge to this in the County Court and the Court of Appeal failed, but the Supreme Court allowed her appeal.
  • There are two points of particular importance and of general application that arise from this decision. Firstly, s11 of the Children Act 2004 has a role to play in the assessment of whether accommodation being offered by a local housing authority is suitable: "The question of whether the accommodation offered is 'suitable' for the applicant and each member of her household clearly requires the local authority to have regard to the need to safeguard and promote the welfare of any children in her household... The decision maker should identify the principal needs of the children, both individually and collectively, and have regard to the need to safeguard and promote them when making the decision." (Para 27).
  • Secondly, a local housing authority should properly consider its obligations by reference to each case. In particular, is it practicable for the family to move out of the area? What accommodation is available within the borough, has this been offered and why not? If accommodation is not available, has the authority offered accommodation that is as close as possible to the applicant's current area?
  • The local housing authority should ideally also have a published policy for procuring sufficient units of temporary accommodation (para 39).
  • In Mohamoud v Kensington & Chelsea RLBC [2015] EWCA Civ 780 two different homeless households that contained children were found to be intentionally homeless and the local authority therefore only had the more limited housing duties in s190 of the Housing Act 1996. When the local authorities sought to recover possession of the properties that they had let as temporary accommodation, the occupiers defended raising, amongst other things, public law defences based on breach of s11 of the Children Act 2004. The defences were dismissed, as was a conjoined appeal to the Court of Appeal.
  • The Court of Appeal re-affirmed that s11 of the Children Act 2004 does not give rise to a free standing duty (para 63), nor did it require an assessment before the service of a notice to quit in every case for the purpose of finding out what the circumstances of any relevant child might be (para's 65 - 70).
  • It is important, following the decision in Mohamoud: (1) That any significant features relating to any relevant children are raised in good time so that they can be taken into account; and (2) That article 8 is considered, as the best interests of the child may be relevant to proportionality (ZH (Tanzania) v S of S for the Home Department [2011] UKSC 4).
  • The final case of R (AM) v Havering LBC [2015] EWHC 1004 involved a family that was moved under the homelessness provisions from one local authority area to another with both local authorities failing in their obligations under s17 of the Children Act 1989. Cobb J found that this was another example of children being "pushed from 'pillar to post'" (para 48) and observed that "some local authorities remain impervious to previous judgments of the courts and cogent guidance offered by the codes of practice in this regard." (Para 4(ii)).
  • This decision provides a useful summary of the principles established from the previous case law (para 33) and serves as a useful reminder of the need for local authorities and departments within such authorities to co-operate with each other: "Persistent and endemic failures on the part of neighbouring local authorities to co-operate with each other in resolving such issues in individual cases have regrettably resulted in vulnerable families (including potentially AM's family) being without support or services."
  • This case re-affirms that a child without accommodation is a child in need, triggering the need for an assessment under s17 of the Children Act 1989 in accordance with well known case law and guidance. 

The Allocation Cases
    • At the end of 2014 a successful appeal to the Court of Appeal in R (on the application of Jakimaviciute) v Hammersmith & Fulham LBC [2014] EWCA Civ 1438 illuminated a practice, prevalent in the Part VI of the Housing Act 1996 allocations schemes of some local authorities, of disqualifying certain persons, despite their being in a reasonable preference category, from the scheme. This trend of successful challenges to such allocations policy's has continued in 2015 in the two cases referred to.
    • As a reminder, s166A of the Housing Act 1996 obliges local housing authorities to frame their allocations schemes so as to give reasonable preference to certain specified groups. Other than this great latitutde and flexibility is afforded to local housing authorities and this is confirmed by the Localism Act 2011 and the approach of the court in R (on the application of Ahmad) v Newham LBC [2009] UKHL 14 and since.
    • In R (on the application of HA) v Ealing LBC [2015] EWHC 2375 there was a challenge to an allocations scheme that declared households that had not been resident in the local authority area for the last 5 years, amongst others, ineligible for entry onto the housing register. On a judicial review claim, Goss J held that the policy of Ealing LBC was unlawful.
    • Giving judgment, Goss J said: "Although a residency requirement is an entirely appropriate and encouraged provision in relation to admission onto a social housing list, it must not preclude the class of people who fulfill the 'reasonable prefence' criteria." (Para 23).
    • R (on the application of Alemi) v Westminster CC [2015] EWHC 1765 was a challenge to an allocations scheme that suspended the right of an applicant who was unintentionally homeless and in priority need from bidding for social housing for the first 12 months after joining the scheme, although the applicant was entitled to bid for private rented accommodation during this time. The High Court struck down this part of the allocation scheme as unlawful on the ground that during that time persons in a reasonable prefernce category (of which the Claimant was one) would not be afforded reasonable preference as required.
    • In giving his judgment Blair QC said that: "the examples set out in section 166A(5) of the 1996 Act reflect the legislative intention to recognise features of the circumstances off applicants for whom, as a sub-group, an LHA may justify differentiation in the priority they are given within a larger group which must be given reasonable preference in the allocation of social housing... What those examples in section 166A(5) do not do is altogether remove them from the potential of being allocated social housing." (Para 29).
    Russell James
    Russelljames@devonchambers.co.uk
    Russell specialises in Housing and Homelessness Law, Property Litigation and Civil and Commercial Litigation. 
    Our Housing Team:
    Russell James | Garth Richardson |  Edward Bailey | Scott Horner
    Jennifer Tear
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