Accommodating minors

Under the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI no 2051), all 16 and 17-year-olds are to be treated as being in priority need under s 189 of the Housing Act 1996, provided they are not classified as a 'relevant child' or owed a duty by a local authority under s 20 of the Children Act 1989.

'Child in need'

In R (M) v Hammersmith & Fulham LBC [2006] EWCA Civ 917, the claimant was, unusually, seeking to argue that she was not in priority need under the 2002 order '“ in an effort to get social services to assist her. She was excluded from her family home when she was aged 17 and applied to the authority for assistance with housing. The authority's housing department considered that she had a prima facie claim as homeless given her age and circumstances and accordingly provided her with temporary accommodation in a hostel under s 188 of the Housing Act 1996, pending inquiries into what (if any) duty was owed to her as a homeless person. Following a period of custody in a youth offenders' institution the claimant turned 18. Prior to her release, she commenced judicial review proceedings against the authority, seeking a declaration that she was a 'former relevant child' for the purposes of Pt 3 of the Children Act 1989, and was therefore owed a duty as a care leaver under the 1989 Act and the Children (Leaving Care) (England) Regulations 2001. It was submitted by the claimant that '“ when she applied for assistance '“ she was obviously a 'child in need' for the purposes of s 20 of the 1989 Act, and had therefore been owed a duty under that Act; the provision of assistance under s 188 of the Housing Act 1996 was an error on the part of the authority because - as a child in need who was owed a duty under s 20 of the 1989 Act - she was excluded from priority need under the priority need order '“ see above.

The Court of Appeal, which heard the claimant's renewed application for judicial review, dismissed the claim. It was held that the duty to provide temporary accommodation pending inquiries under s 188 of the Housing Act 1996 arises when an authority has 'reason to believe' that a person is homeless, eligible for assistance and in priority need; it is therefore dealing with 'apparent' priority need. On the basis of the evidence before the authority, the claimant could properly have appeared to be a person in priority need under the priority need order. Accordingly, the authority were entitled to deal with the claimant under the 1996 Act and were not required to treat her as a 'child in need' under the 1989 Act.

Priority need

Akilah Robinson v Hammersmith & Fulham LBC [2006] EWCA Civ 1122 dealt with a number of important issues affecting homeless applicants. On 17 February 2005, the appellant's mother asked her to leave the family home. At that time, the appellant was 17 and due to turn 18 on 11 March. She approached the authority for assistance as a homeless person. A housing officer accepted that she was in priority need because she was under 18, but told her that it would take them 28 days to investigate her case, by which date she would be over 18 and therefore not in priority need. The officer accordingly advised the appellant that an application would be unsuccessful. Having taken advice from a law centre, the appellant again approached the authority. She was provided with interim accommodation and referred to mediation with her mother to attempt reconciliation. On 9 March, the appellant's mother refused to enter into mediation. On 10 March (the day before the appellant's 18th birthday), the authority decided that the appellant had no priority need and informed her of that decision by telephone. They decided not to send the written notification of '“ and reasons for '“ that decision (as required by s 184 of the Housing Act 1996) until the following day. The appellant requested a review of the decision that she was not in priority need, which review upheld the original decision.

The appeal against the review decision was dismissed in the county court, but the Court of Appeal allowed a further appeal. They held that the original decision was plainly unlawful. Although the decision letter had not been sent until the next day, the decision had been taken on the day before the appellant's birthday; the appellant had been 17 at the date of that decision and should have been found to be in priority need.

Further clarification

Significantly, the Court of Appeal went on to clarify a number of other issues. Firstly, it decided that an authority was not entitled to defer a decision, even for a short period, on the basis that by doing so the applicant would have reached the age of 18 before the decision was taken (approving R v Ealing LBC ex parte Sidhu [1982] 2 HLR 45, QBD).

Secondly, with reference to the review decision, although by the date it was reached, the appellant was 18 years old and prima facie no longer in priority need, it was held '“ distinguishing Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57 '“ that the reviewing officer should have concluded that the original decision was unlawful and therefore restored to the appellant the rights she would have had if a lawful original decision had been reached, ie, a finding that she was in priority need (following dicta of Chadwick LJ in Crawley BC v B [2000] 32 HLR 636, CA).

'If the original decision was unlawful... the review decision-maker should have so held and made a decision that would have restored to the appellant the rights she would have had if the decision had been lawful.'( Per Waller LJ at para [32]).

Finally, the authority sought to argue that it was entitled to defer making a decision in the appellant's case pending the outcome of the attempted mediation which they had instigated between the appellant and her mother. The Court of Appeal recognised that reconciliation and mediation are to be encouraged, particularly in the case of 16 and 17-year-old children who have been excluded from the family home, but it was wrong for an authority to persuade a family into mediation and then use the time that the mediation would take in order to deprive the child of a right that he or she would have had without mediation; the mediation process was wholly independent of the inquiries process; there was no power to defer making inquiries pursuant to s 184 on the grounds of a pending mediation.

'The two processes may of course proceed in parallel; and if mediation is successful while the s 184 inquiry process is still on foot, then of course there will be no need for the latter process to continue any further. On the other hand, a local housing authority has, in my judgment, no power to defer making inquiries pursuant to s 184 on the ground that there is a pending mediation.' (per Jonathan Parker LJ at [42]).

Robinson sends a clear message to local authorities that they must not treat 16 and 17-year-olds differently from other homeless people. It is incumbent upon them to progress their enquiries and make their decision. They are not entitled to put matters on hold while a mediation takes place and they are certainly not entitled to deliberately delay a decision with the aim of avoiding a duty.