Patricia Carr, Solicitor
Introduction
In Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7 the House of Lords was asked to determine how a local authority should take into account Residence Orders made under the Children Act 1989 in determining homeless applications under Part VII Housing Act 1996. This article analyses the decision in Holmes-Moorhouse and discusses what advisors for applicants and local authorities should do in the light of the decision.
The Facts
Mr Holmes-Moorhouse (H) was ordered to leave the family home by a family court in August 2005. The order of the court also provided that the children of the relationship should spend alternate weeks and half of their school holidays with each parent.
As he had no accommodation, H applied to the local authority as homeless under Part VII Housing Act 1996. The basis of his application was that he was a person with whom dependant children reside or might reasonably be expected to reside albeit on alternate weekends.
The local authority upon examination of the facts reached the decision that although H was homeless and eligible for assistance, he was not in priority need for accommodation.
The reason for their decision was that a shared residence order by a court did not lead to an automatic conclusion that it would be reasonable for the children to reside with him. Only in exceptional cases could a child be considered to be residing with both parents.
Having considered R v Westminster CC Ex P Bishop (1997) 29 H.LR 546 QBD, the local authority concluded further that the physical, housing and emotional needs of the child could be met whilst living with the mother who was adequately housed and in receipt of benefits for her children. H’s degree of care was not greater than the mother’s so as to give rise to a priority need for accommodation. The local authority was also swayed by the fact that the child protection notes had indicated that H was fully aware that he would not be assisted with housing on the basis of the children.
The local authority upheld their decision following H’s request for a review of their original decision. The fact that the shared residence order was permanent did not decide the question of whether the children were staying with H on a permanent basis (as suggested by H’s legal representatives). Where a child resides with one parent on alternate weeks and the other parent is adequately housed and the main carer, something more than the bare fact of staying is required before one would ordinarily describe the children as ‘residing’ with the homeless parent.
Appeal to the County Court
H.H. Judge Oppenheimer held that the local authority was not bound by the decision of the family court as to the arrangements about where and with whom the child should reside. The local housing authority was entitled to take into account that it would be required to provide two houses and that for part of the time the houses were likely to be under- occupied. He concluded that the review decision disclosed no error of law.
H appealed to the Court of Appeal
The issues for the court to consider were:-
(i) whether the making of the shared residence order determined whether H was a person with whom dependent children "might reasonably be expected to reside";
(ii) the weight to be attached to a shared residence order by a local housing authority when making its decision under s.193 of the 1996 Act, and the extent to which the scarcity of public housing was a relevant consideration;
(iii) whether R's decision disclosed an error of law.
Lord Justice Morris in overturning the decision of the County court held that:-
(i) Where the shared residence order is contested, the court was bound by s1(3)(F) of the Children Act 1989 to have regard to the capability of the parents to accommodate the child. The local authority in such circumstances should have the opportunity to comment on the housing conditions within their area, the effect that any order would have on other people in priority need and/or on the allocation scheme. If taken into account the local authority would be bound to follow the decision of the family court in a contested hearing.
On the other hand, where the hearing had not been contested, the local authority could consider afresh the reasonableness of an applicant’s expectation that a dependant child would reside with them.
(ii) In relation to the scarcity of resources, Lord Justice Morris said that Parliament demonstrated that there was a distinction between Part VI and Part VII of the 1996 Act. In so doing Parliament had decided how the scarce resource of public housing should be deployed. Priority should be afforded to those with whom dependant children might be expected to reside. The scarcity of resources had no room therefore when considering the concept of reasonableness to remain. The decision of the court was overturned in this regard.
(iii) In eliding the concept of shared residence with ‘merely staying’ the review officer had erred in law.
The phrase "might reasonably be expected to reside" connoted something more than mere prediction of the likelihood of a dependent child residing with the applicant for accommodation. It required the local authority to make an evaluative judgment as to whether the expectation of the applicant was reasonable.
The Local authority appealed to the house of Lords
Lord Hoffman
The phrase ‘Reasonably expected to reside’ was impersonal. The question should be rather what considerations does the act require or allow to be taken into account in deciding whether one person ought reasonably to be expected to live with another.
Whilst he accepted that the local authority must exercise their duties under Part VII as directed by Parliament, the local authority should also take into account when exercising their duties, overall purpose of the scheme which includes the scarcity of resources within their local authority area. This was somewhat different from saying that they were unable to discharge their duties owing to a lack of resources (which they are clearly not entitled to do).
Whilst the Housing Act was designed to cater for the ‘nuclear family’ in modern society this has to be weighed up against a scheme for allocating scarce resources.
Different conditions applied to an application of the Children Act 1989 and the Housing Act 1989. The two should therefore not become entangled with each other. Wider considerations applied to the application of the Housing Act 1996.
The Court of Appeal was wrong to suggest, therefore, that a housing authority should intervene in family proceedings to argue against the court making a shared residence order. The court should not make a shared residence order unless it appears reasonably likely that both parties will have accommodation in which the children can reside. But the provision of such accommodation is outside the control of the court.
״, when an application is made on the basis that someone is threatened with homelessness, the question is whether the children will be residing or might reasonably be expected to reside with him when he becomes homeless. In the absence of accommodation provided by the housing authority, the children would not be residing with him when he became homeless. So the only question is whether they might reasonably be expected to reside with him."
Lord Hoffman also narrowed the categories in which one parent with a shared residence order who was homeless could satisfy the criteria of ‘reasonably expected to reside’ under Part VII. The needs of the children would have to be exceptional before a housing authority could decide that it is reasonable to expect an applicant to be provided with accommodation for them which will stand empty for at least half of the time. Examples when the duty could apply would include a child suffering from a disability which makes it imperative for care to be shared between separated parents. But he cautioned such cases, in which that child (but not necessarily any sibling) might reasonably be expected to reside with both parents, will be unusual.
Lord Neuberger
Lord Neuberger gave guidance as to how judges ought to approach decisions made by a local authority pursuant to Part VII.
A judge’s approach should not be technical, unrealistic or unfair view of when reviewing the decision of the local authority. The judge should not search for inconsistencies or adopt a nit picking approach. The approach should be practical and realistic. Housing officers have experience in their work. They are not lawyers. Quite often, prior to notifying homeless applicants of their written decisions, their decisions are approved by persons with legal expertise/background. With this in mind, it was not considered appropriate for judges to subject the written decision of a housing officer to the same scrutiny applied to lawyers who draft contracts, Acts of Parliament or a court’s judgment.
Lord Neuberger also considered how much detail decisions/notifications should contain given the importance to the homeless applicant(s). The more fuller a decision the more the decision letter becomes subject to scrutiny. This would lead to housing officers becoming reluctant to detail their section 184 notifications. The need to provide detailed decisions should always be weighed against the applicant’s right not to be wrongly deprived of assistance under Part VII because of a failure to apply the law correctly. Errors can be made. However where errors are made which are either are trivial or not fatal to the decision(as in the present case), the decision should stand unless it undermined the basis of the local authority’s reasoning [48, 49]. The decision letter of the local authority in the instant case did indeed disclose an error in the s184 notification. However when this error was read in conjunction with the entire decision, it did not deprive H of his rights. The decision of the Court of Appeal in this regard was overturned.
Comment
The House of Lords’ decision follows a series of previous first instance decisions. In R v Westminster CC Ex P Bishop (1997) 29 H.LR 546 QBD where parents had agreed that the children should split their time between each of them, the authority was entitled to conclude that the children were not dependant on one of them, the father. The local authority weighed up the fact that one of the parents had already been adequately housed and was the main supplier of the child’s financial, physical and emotional needs whereas the other parent was not in the same position (the local authority in this case reached the same view and quoted this case in support of their decision). In R v Talbot BC ExP McCarthy 1990 (1990) 23 H.L.R. 208 CA the court said that only in very exceptional circumstances might a child reside with both parents living apart. Although not mandatory the local authority was entitled to conclude that a child would usually reside with the parent who had care and control. In R v Oxford CC Ex P Doyle 30 H.L.R 506 the local authority, when considering their duties under s189, were entitled to take into account the scarcity of housing stock within their area and the fact that when the child was not residing with one of the parent(s), the other parent would be under- occupying accommodation. The House of Lords has merged all these decisions to formulate a general principle and guidance as to how such homeless applications ought to be dealt with. The case reinforces what the lower courts had been applying for some time.
This case deals with the situation where there is a shared residence order. Other situations may be different.
The case does not deal with the local authority’s Part VI allocation policy. Some local authority allocation policies provide for relationship breakdown and, for example, allows for a parent who has a child for part of the week to be allocated 1 bed room accommodation upon the basis of satisfactory evidence. Such policies where they exist are still available to help applicants. Advisors will always need to check whether a local authority has such a provision within their allocation policy.
The case does not decide that a separated parent will never be able to establish that it is reasonable to expect his children to live with him. Court orders will always be an issue in these type of cases. There may be additional factors such as the well being of the child if not accommodated with the parent if that parent is not housed. Given the need to ensure that all information if before the local authority by the time of requesting a review, any medical information or additional social services information that may assist the parent requesting accommodation should be considered and submitted to the local authority on review.
Family court orders will still be relevant to the assessment, as will any factual evidence of who cares for the children. There may be exceptional circumstances, e.g. where there is a disabled child, where both/separated parents may have priority need. Advisors representing applicants will have to stress any exceptional circumstances, both on the initial application and on any subsequent review.
Patricia Carr is a solicitor with Anthony Gold who specialises in housing law.
