Zia Nabi and Marisa Cohen examine how the courts have ensured that local authorities comply with their obligations to homeless children.
The lack of resources available to local authorities continues to play out in two key battlegrounds affecting homeless children:
•passing the homeless child between housing and social services; and
•child poverty, rent costs and intentionality of homelessness.
The Housing Act (HA) 1996 imposes a duty on housing authorities to secure accommodation for persons who are homeless, in priority need and not intentionally homeless (s193). Although there is no statutory minimum age for making a homeless application, only non-dependent children may apply (Re Garlick and ex p Ferdous Begum
 AC 509; Homelessness code of guidance for local authorities
(Ministry of Housing, Communities and Local Government (MHCLG), last updated 15 April 2019), para 18.8, which also requires an assessment under Children Act (CA) 1989 s17 to be completed).
The CA 1989 has at its heart the welfare of the child, and sets out the duties owed to children by social services (ss17 and 20). The Act requires a child-centred approach, placing them at the heart of decision-making (s17(4A)).
In 1991, the UK government ratified the UN Convention on the Rights of the Child
, which requires the best interests of the child to be a primary consideration in all actions concerning children. In 2008, the government signed up to the convention in full.
Children Act 1989
There is a general duty under the CA 1989 to safeguard and promote the welfare of children within an authority’s area who are in need (s17). This includes a power to provide accommodation (s17(6)). A child without accommodation is a child in need.1See R (AM) v Havering LBC and Tower Hamlets LBC  EWHC 1004 (Admin) at para 33; May 2015 Legal Action 46 for a useful summary of s17 powers and duties.
Under s20(1), there is an express duty to accommodate homeless children in need who appear to require accommodation. Section 20(3) provides an additional duty towards 16- and 17-year-olds.
Once a child is accommodated under s20, they become a ‘looked after child’ (s22(1)(b)) and social services become subject to further statutory duties. These include:
•a duty to safeguard and promote the child’s welfare (s22(3)(a)); and
•a duty to maintain the child in other respects apart from the provision of accommodation (ss22B and 23A–23D).
A young person aged 18 or over who has been looked after for at least 13 weeks before reaching 18 becomes a ‘former relevant child’ and is owed leaving care duties (s23C(1)). Social services must provide the former relevant child with such other assistance as their welfare requires, which may include payments towards their accommodation costs or the provision of accommodation (s23C(4); R (SO) v Barking and Dagenham LBC  EWCA Civ 1101 at para 30
; December 2010 Legal Action
Housing Act 1996
The following are in automatic priority need:
•a person aged 16 or 17 who is not a relevant child for the purposes of CA 1989 s23A and who is not owed a duty under CA 1989 s20 (Homelessness (Priority Need for Accommodation) (England) Order 2002 SI No 2051 (H(PNA)(E)O) article 3); and
•a person who is under the age of 21 and at any time between 16 and 18 was, but is no longer, looked after, accommodated or fostered (H(PNA)(E)O article 4).
Provided that they are eligible for assistance, homeless and not intentionally homeless, such persons will be owed the main housing duty to be provided with suitable accommodation (HA 1996 s193(2)).
Homeless child – which Act?
The clear intention of the statutory frameworks is that the accommodation duty under the CA 1989 takes primacy, as a non-dependent child who is owed a duty under that Act cannot be in priority need, and so cannot be owed the main housing duty.
Difficulties may arise where only the housing authority appears to have been aware of the homeless child, in circumstances where social services would be under a duty to provide accommodation. There is a statutory obligation on housing authorities and social services departments to cooperate (CA 1989 s27; Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation
(MHCLG and Department for Education, April 2018) para 1.3 and chapter 6). It is essential that there is a joint protocol in place to deal with homeless 16- and 17-year-olds so that vulnerable children who need more than simply a roof over their heads are provided with appropriate care and support.
In R (M) v Hammersmith and Fulham LBC  UKHL 14
; April 2008 Legal Action
35, M went to the housing department with a letter from her mother. M was provided with temporary accommodation by the housing department. There was no referral to social services. M argued that she was nonetheless a former relevant child owed leaving care duties as she should have been supported by social services.
The House of Lords held that the housing department should have made a referral to social services and that social services should have accepted responsibility as M was ‘a deeply troubled young person with need for far more than a roof over her head’ (para 33). However, as social services had never been involved, M had never been a looked after child and so was not entitled to the benefit of leaving care duties.
may be contrasted with R (G) v Southwark LBC  UKHL 26
; July 2009 Legal Action
35, where G asked to be accommodated under CA 1989 s20 but was said by the authority to have been accommodated under the HA 1996. The House of Lords set out a series of questions that the authority needed to address, and held that if the s20 duty had arisen and the authority had provided accommodation for the child, it could not ‘side-step’ the issue by giving the accommodation another label (para 28).
In R (TG) v Lambeth LBC and Shelter (intervener)  EWCA Civ 526
; July 2011 Legal Action
20, the authority accommodated TG under its interim accommodation duty (HA 1996 s188(1)). However, TG was also supervised by a qualified social worker in the council’s youth offending team who had described him as fulfilling the child in need criteria within the meaning of CA 1989 s17. TG
argued that because of the supervision and fulfilment of the child in need criteria, the accommodation ought, and should be deemed, to have been provided under CA 1989 s20. This meant he was now a ‘former relevant child’ owed leaving care duties.
The Court of Appeal agreed, holding that the actions of the social worker, who was the ‘eyes and ears’ of the children and young people’s service, were to be imputed to social services (para 28), and so accommodation could be deemed to have been provided under CA 1989 s20. Accordingly, TG was a former relevant child entitled to leaving care support.
Child poverty, intentionality and affordability of rent
The bedroom tax, changes to the local housing allowance and the benefits cap have all had an effect on child poverty in the UK. According to the Child Poverty Action Group
, there were 4.1 million children living in poverty in 2017/18, with London being the area with the highest rates of poverty.
A person is intentionally homeless if they deliberately do or fail to do anything in consequence of which they cease to occupy accommodation that is available for their occupation and that it would be reasonable for them to continue to occupy (HA 1996 s191(1)). The consequence of being found intentionally homeless is that even if a person is in priority need, only a limited short-term accommodation duty is owed for such period as the authority considers will give them a reasonable opportunity of securing accommodation (HA 1996 s190(2)). Typically, this period is 28 days (see R (Conville) v Richmond upon Thames LBC  EWCA Civ 718
; July 2006 Legal Action
A failure to pay rent leading to eviction can lead to a person being intentionally homeless. However, an applicant cannot be intentionally homeless if the accommodation that has been lost would not be reasonable for their continued occupation indefinitely (R (Aweys) v Birmingham City Council  UKHL 36
; August 2009 Legal Action
Accommodation that is not affordable is not reasonable for continued occupation for the purposes of both the homelessness and intentionality tests under the HA 1996 (ss175, 177 and 191). Affordability of rent is something that has to be expressly considered by the authority under the Homelessness (Suitability of Accommodation) Order 1996 SI No 3204.
A key battleground has been whether accommodation can be said to be affordable for a person on subsistence-level benefits, where there is a significant shortfall between the housing benefit and the contractual rent. The argument has been that even if a person is on benefits and there is a shortfall between the housing benefit and rent, the accommodation is nonetheless affordable because the shortfall can be met by utilising other benefits, for example, child benefit. This has led to subjective decisions by housing officers as to how other benefits should have been spent, and what are essential and non-essential items of expenditure, particularly with reference to money spent on children. Unsurprisingly, hard-pressed local authorities tend to take a firm line when determining whether an applicant could have better managed their resources and prioritised their housing costs.
This conundrum was addressed by the Supreme Court in Samuels v Birmingham City Council  UKSC 28
.2See also page 45.
Ms Samuels was on subsistence-level benefits. She argued that she could not be intentionally homeless because the accommodation she had been evicted from was not affordable given the shortfall between her housing benefit and the rent. The council had decided that the accommodation had been affordable because, when other benefits were taken into account, there was sufficient flexibility in overall income to meet the shortfall.
The Supreme Court held that affordability required an objective assessment of reasonable living expenses on the basis that the accommodation was to be available indefinitely. It was relevant in this assessment that there was a duty under the CA 1989 to promote and safeguard the welfare of children. On that analysis, the question was not whether Ms Samuels could somehow juggle her finances to deal with the shortfall, but rather:
… what were her reasonable living expenses (other than rent), that being determined having regard to both her needs and those of the children, including the promotion of their welfare (para 36; emphasis added).
Given that welfare benefits were not generally designed to provide a surplus above subsistence needs, the court found that it was difficult to see how Ms Samuels’s expenditure could not be regarded as reasonable.
This is an important decision. It should hopefully end subjective analyses of income and expenditure by individual officers when people are on subsistence-level benefits. It is also welcome for emphasising the importance of the promotion of children’s welfare when assessing reasonableness of expenditure. However, it does not – and cannot – resolve the underlying problem, which is one of a lack of resources. This needs to be addressed by central government.
Homeless children are among some of the most vulnerable people in society. The cases above illustrate the willingness of the courts, at least on occasion, to examine the reality of their situation notwithstanding the impact of their decisions on local authority resources.
In September 2019, the housing and social welfare team at Doughty Street Chambers will host The Homeless Child: Causes and Solutions
, a wide-ranging, day-long conference examining the key legal issues surrounding homeless children in recent years.