West Law Report

Housing authority is not bound by family court residence order

Posted in House of Lords (case), Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 5, 2009

Housing authority is not bound by family court residence order
House of Lords
Published February 5, 2009
Holmes-Moorhouse v Richmond-upon-Thames London Borough Council
Before Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Speeches February 4, 2009

When a court in family proceedings made a shared residence order providing for children to spend alternate weeks with each parent, and one parent was homeless, a housing authority was not obliged, on account of that order, to regard the homeless parent as having priority need on the ground that he was a person with whom dependent children might reasonably expected to reside.

The House of Lords so held allowing an appeal by Richmond-upon-Thames London Borough Council from the Court of Appeal (Lord Justice Auld, Lord Justice Rix and Lord Justice Moses) (The Times November 19 2007; [2008] 1 WLR 1289) who had allowed an appeal by the father, Edward Holmes-Moorhouse, from the dismissal dated May 3, 2006, of Judge Oppenheimer, at Brentford County Court, of his appeal from the council’s decision on his application for assistance as a homeless person, that he did not have priority status as a homeless person with whom dependent children might reasonably be expected to reside.

Mr Andrew Arden, QC and Mr Matthew Hutchings for Richmond; Mr Jan Luba, QC and Mr Nicholas Nicol for Mr Holmes-Moorhouse.

LORD HOFFMANN said that the court, with the consent of the parents, ordered the father to leave the family home in Richmond-upon-Thames and provided that both parents were to have shared residence of three of their children. The order said the children should spend alternate weeks and half of their school holidays with each parent.

The father applied to the council’s housing services for assistance under Part VII of the Housing Act 1996, which imposed duties on housing authorities in respect of accommodation for people who were homeless or threatened with homelessness.

The council accepted that the father was threatened with homelessness but not that he had priority need. Section 189(1) of the 1996 Act listed the categories of persons who had priority need. Section 189(1)(b) included “a person with whom dependent children reside or might reasonably be expected to reside”.

The council said that the children could not reasonably be expected to reside with the father if that required the council to provide a second home for them, and the fact that the court thought it was in the interests of the children to have two homes did not bind the council.

His Lordship said that when a court determined any question with respect to the up-bringing of a child, the child’s welfare was paramount: see section 1(1) of the Children Act 1989. The court’s decision as to what would be in the interests of the welfare of children had to be taken in the light of circumstances as they were or might reasonably be expected to be.

The question for the housing authority under Part VII of the 1996 Act was not the same. In deciding whether children could reasonably be expected to reside with a homeless parent, it was not making the decision on the assumption that the parent had or would have suitable accommodation available.

On the contrary, it was deciding whether it should secure that such accommodation was provided. That brought in considerations wider than whether it would be in the interests of the welfare of children to do so.

The fact that both the court and the housing authority applied criteria which looked superficially similar did not mean that the questions were the same.

The contexts were quite different. The housing authority, applying the provisions of the Housing Act not the Children Act, had to answer the question whether the children could reasonably be expected to reside with the father in the context of a scheme for housing the homeless.

The phrase “might reasonably be expected” clearly referred to an impersonal objective standard. It clearly appealed to an objective social norm which had to be applied in the context of a scheme for allocating scarce resources. It was impossible to consider only what would be desirable in the interests of the family if resources were unlimited.

Part VII provided a safety net or last resort for people who would otherwise be homeless. But the 1996 Act also had to be interpreted with liberality, having regard to its social purposes, with recognition of the claims of others and the nature and scale of a housing authority’s responsibilities.

The question which the housing authority therefore had to ask itself was whether it was reasonably to be expected, in the context of a scheme for housing the homeless, that children who already had a home with their mother should be able also to reside with the father.

In answering that question, it would be entitled to decide that it was not reasonable to expect children who were not in any sense homeless to be able to live with both mother and father in separate accommodation.

The Court of Appeal had said that the fact that housing was a scarce resource should be regarded as irrelevant to the question of whether it was reasonable to expect the children to live with the father.

His Lordship disagreed with that proposition, whether as a matter of law, logic or social policy.

There was no reason in logic why the fact that Parliament had made the question of priority need turn upon whether a dependent child might reasonably be expected to reside with the father should require that question to be answered without regard to the purpose for which it was being asked, namely, to determine priority in the allocation of a scarce resource. To ignore that purpose would not be a rational social policy.

It did not mean that a housing authority could say it did not have the resources to comply with its obligations under the Act. But so far as the priorities to be applied involved questions of judgment, it must surely take into account the overall purpose of the scheme.

The Court of Appeal was also wrong to suggest that a housing authority should intervene in family proceedings to argue against the court making a shared residence order. It was relevant for the housing authority to know that the court considered that the children should live with both parents.

But the housing authority was not concerned to argue that the court should not make an order to that effect. The order, if made, would only be part of the material which the authority took into account in coming to its decision. The two procedures for deciding different questions must not be allowed to become entangled with each other.

The father and mother went back to the court to complain that the council had been uncooperative in implementing the shared residence order. The court then made a further order recording its concern that due to no fault of either party the shared residence order had not been implemented by reason of the father‘s inability to obtain suitable accommodation.

His Lordship said that the council’s reviewing officer was quite right to take no notice of that order. It was not the business of the court exercising its jurisdiction under the 1989 Act to try to exert pressure upon a housing authority to provide resources for one or other of the parties.

The reviewing officer had ample grounds upon which he was entitled to give a negative answer to the question whether in the context of the housing authority’s duty to make provision for the homeless, the children might reasonably be expected to live with the father as well as the mother.

Lord Scott and Lord Walker agreed. Lady Hale and Lord Neuberger delivered concurring speeches.

Solicitors: Mr Richard Mellor, Twickenham; Scully & Sowerbutts, Brentford.

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