Friday, October 12, 2007

Council housing and shared residence

Hat-tip to Nearly Legal for drawing attention to the case Holmes-Moorhouse v London Borough of Richmond-Upon-Thames [2007] EWCA Civ 970, which gives important guidance upon the issue of the provision of local authority housing in shared residence cases, something that is likely to become more frequent as shared residence becomes more common. Lord Justice Moses differentiated between those cases where a shared residence order was made after a contested hearing and those where it was made by consent:
where a shared residence order is opposed, the Court is bound, by virtue of s.1(3)(f) [of the Children Act] to have regard to the capability of the parents to accommodate the child. The local housing authority ought, therefore, in that circumstance, be given the opportunity to comment upon local conditions and the effect of a shared residence order on others in priority need and on its own allocation scheme. Accordingly, where those matters have been taken into account, as they ought to have been, it is difficult to see that there is any room for a local housing authority to do other than follow the decision of the family court on a contested hearing [paragraph 48]

On the other hand, where the order is made by consent:
I see every reason why a local housing authority, in performance of its obligation under s.193(1)[of the Housing Act], should consider afresh the reasonableness of an applicant's expectation that a dependent child will reside with the applicant. Furthermore, in considering the reasonableness of that expectation, a local housing authority is not just entitled, but obliged to consider the extent to which the children's needs require the child to live with, as opposed to stay with, the applicant [paragraph 49]

Note that the scarcity of available housing should not play a part in the local authority's decision [paragraph 43].

Of course, shared residence arrangements are often agreed, so there is no order - presumably this situation will be treated in the same way as a consent order, or will the local authority require an order before it even considers the application? The problem for the applicant who is refused rehousing is that whilst they may then be able to apply for an order, if that application is not opposed then the local authority will not be obliged to provide rehousing even if the order is made.

5 comments:

  1. John, I don't think that there can be any such presumption with regard to shared residence agreed without Court Order. For a homeless application, the issue here, the Local Authority would require clear evidence that the children ordinarily reside or would reasonably be expected to reside with the applicant. In the absence of a Court Order, by consent or otherwise, the authority is unlikely to accept the say so of the applicant, particularly if, as is usually the case, the children are at that point resident with the other parent and they have the assorted benefit awards for child care. The authority will doubtless say that the children merely 'stay' with the applicant, and that they are not resident with them. This is why the court order is key in the Richmond case.

    I've also replied to your comment on Nearly Legal

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  2. Oh and by the way, the scarcity of housing can still be considered for a Part VI housing list application, it is only excluded, by statute, in a Part VII homeless application.

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  3. If you're right about the need for an order - and I suspect you are - then that is unfortunate, as obviously we (i.e. family lawyers) and our clients would prefer to keep things out of court.

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  4. this will be a practical nightmare - often shared residence is raised relatively late on in proceedings as the result of judicial intervention rather than by way of application by the parties - often it becomes apparent it is a possible solution at trial. If the local authority housing department have to become involved before a conclusion can be reached this is likely to lead to delay or even the abandonment of shared residence as an option. Of course the solution to that problem is for lawyers, judges and cafcass officers to give consideration to shared residence as a possibility as a matter of course, but that is not presently the reality.

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  5. Agreed. Perhaps the rules should provide for applications to be served upon the local authority where rehousing will be sought, and for the issue to be considered at the first directions appointment. However, as you say, this will still not cover those cases where shared residence is raised late on in proceedings.

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