Sam Madge-Wyld examines how the courts have approached local authorities’ statutory duty to accommodate children.
While authorities cannot avoid performing statutory duties or make irrational decisions, where resources are scarce they are entitled to only perform such duties and powers when they are absolutely satisfied that it is necessary.
One of the most obvious and graphic illustrations of seven years of austerity and cuts to local authorities’ budgets is the rise in rough sleeping. In the six years between 2010 and 2016, the number of people sleeping rough in England rose from 1,768 to 4,134
. The causes of rough sleeping are numerous, but one inescapable reason is the fact that local housing authorities are not obliged to provide accommodation to adults who do not have a ‘priority need’ for housing or those who have become homeless through some fault of their own, eg, failure to prioritise rent or mortgage payments. In times of austerity, grants and budgets for discretionary spending, such as providing temporary places to sleep for rough sleepers, are cut and adults without support networks, in the absence of any public authority having a positive duty to help them, are forced to resort to charity or the streets.
The position for children and their parents is, fortunately, different. The main reason for this is the fact that the Children Act (CA) 1989 requires social services authorities to accommodate children without accommodation. CA 1989 s20(1) requires every local social services authority to:
… provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned;
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
It is no defence for an authority to plead a scarcity of resources; if s20 applies to a child, accommodation must be provided: R v East Sussex CC ex p Tandy  AC 714
. That said, there are some limits to the duty. In R (A) v Haringey LBC
 EWHC 3054 (Admin), Timothy Straker QC, sitting as a deputy High Court judge, held that an authority was entitled to treat itself as being released from its obligation under s20 when a young person had refused to move into accommodation that was located away from London and the authority was not satisfied that it was in his best interests to live in London.
Also, although, in R v Barnet LBC ex p G and other appeals  UKHL 57
;  2 AC 208, the House of Lords held that CA 1989 s17 does not oblige social services authorities to house children, who would otherwise be homeless, with their parents, they do have the power to do so and, unlike in respect of homeless adults without families, it is harder for an authority to decline to do so. This is because an authority, when deciding whether to exercise the power to accommodate a child with his/her parents, must do two things: have regard to the need to safeguard and promote the welfare of the child (in accordance with CA 2004 s11) and ensure compliance with article 8 of the European Convention on Human Rights, ie, the child’s right to respect for family life, which in itself requires treating the child’s best interests as a primary consideration: R (C, T, M, and U) v Southwark LBC  EWCA Civ 707
;  HLR 36.
Therefore, while it remains possible for an authority to refuse to accommodate a destitute family together and instead take the children into care, as it will almost never be in a child’s best interests to be separated from his/her parents, such decisions are hard to make rationally and involve intense scrutiny from the courts. It is for this reason that the vast majority of cases settle without being argued in court.
That said, the courts do not operate in a vacuum and it is an inescapable reality that social services authorities do not have sufficient funding to accommodate every family that presents to them as homeless. In R (MN and KN) v Hackney LBC  EWHC 1205 (Admin)
, Leggatt J held that the authority had been entitled to be sceptical of claims that a family – whose members were all present in the UK unlawfully – were about to become homeless after they had managed to support themselves in the UK for a number of years and had refused to provide all of the information that was requested of them.
A variety of recent cases also illustrate well the principle that while authorities cannot avoid performing statutory duties or make irrational decisions, where resources are scarce they are entitled to only perform such duties and powers when they are absolutely satisfied that it is necessary to do so. The cases set out below illustrate that the line, if there is one to be drawn, can often be so fine as to be indiscernible.
R (Jalal) demonstrates courts’ reluctance to interfere with decisions as to the allocation of an authority’s scarce resources where it is not apparent that there is a pressing need for accommodation to be provided.
Family not destitute
In R (A) v Lewisham LBC (2016) 5 May, High Court, unreported, Langstaff J held that the authority had been entitled to find that A’s family were not destitute even though there was evidence that they had been evicted from their home and A’s father had lost his job. This was because A’s family had failed to disclose a bank account that was in credit, failed to disclose their full financial history and it was incredible that the family had no support network despite having been in the UK for 12 years.
Likewise, in R (O) v Lambeth LBC  EWHC 937 (Admin)
; (2016) 19 CCL Rep 626, Helen Mountfield QC, sitting as a deputy High Court judge, held that the authority had been entitled to find that O’s mother, PO, was not destitute by drawing an inference from the absence of money in PO’s bank account that PO’s friends had hidden their support to support her application for accommodation.
Although the latitude given to authorities to decide whether a child is in need is wide, that does not mean they can act unfairly when reaching their decision. In R (S and J) v Haringey LBC  EWHC 2692 (Admin)
, Neil Cameron QC, sitting as a deputy High Court judge, held that the authority’s decision that S and J were not in need was not irrational even though their mother had been evicted from private sector accommodation and the family were sleeping on a friend’s kitchen floor. The claim succeeded, however, because the authority had also drawn adverse inferences from the mother’s failure to disclose information of her finances (namely that this meant her account that she could not afford to rent accommodation lacked credibility) without putting those concerns to her to respond to.
Similarly, in R (BC) v Birmingham City Council  EWHC 3156 (Admin)
, a family’s claim for judicial review was allowed in circumstances where the authority had decided that accommodation that they had recently left in London remained available to them in the face of an assertion by the applicant to the contrary, without making enquiries of the owner of that accommodation to find out if this was in fact the case.
The decision must also be rational. In R (N) v Greenwich RLBC  EWHC 2559 (Admin), the authority decided that N’s mother’s claim that she could not provide accommodation to her child lacked credibility seeing as she had managed to do so previously despite living in the UK unlawfully and not being permitted to work. Andrew Thomas QC, sitting as a deputy High Court judge, held that this finding, however, failed to take into account the fact that N’s mother was no longer able to rent accommodation after the Immigration Act 2014 had been brought into force in England. As such, the fact that she had previously secured accommodation was irrelevant to the question of whether she could do so in the future.
Conversely, in R (Jalal) v Greenwich RLBC  EWHC 1848 (Admin)
;  HLR 40, John Bowers QC, sitting as a deputy High Court judge, upheld a decision of the authority that Mr Jalal’s children were not in need, even though temporary accommodation provided under Housing Act (HA) 1996 Pt 7 was about to come to an end, because Mr Jalal had already had over 10 months to secure alternative accommodation, had sufficient resources to rent alternative accommodation, had made no proper attempts to secure alternative accommodation and there was no reason for him settling in Greenwich. Even in the event that the family were to become homeless, Greenwich’s decision that it would accommodate the children but not their parents was not found to be irrational or a breach of article 8 because at the date of the claim the family had been accommodated for a period of 10 months.
Although it is questionable whether the reasoning on article 8 would have been upheld in the Supreme Court (in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4
;  2 AC 166, Lady Hale held that when assessing what was in a child’s best interests, the children could not be blamed for the actions of their parents), the case demonstrates courts’ reluctance to interfere with decisions as to the allocation of an authority’s scarce resources where it is not apparent that there is a pressing need for accommodation to be provided.
In times of austerity, it is unsurprising that the courts have given authorities a large degree of deference when it comes to the allocation of scarce resources to families who are homeless and not entitled to accommodation under the HA 1996. However, that does not mean that challenges to refusals to provide applicant families with accommodation under CA 1989 s17 should not be taken or are hopeless. The cases above, and the many that are settled without being heard in court, demonstrate that decisions that can be characterised as having been reached in a way that is unfair or that are irrational will be quashed.