Homelessness and the Children Act 2004

Thursday, 13th August 2015

Local authority housing teams no doubt breathed a sigh of relief at the end of July when the joint decisions of Maryam Mohamoud v Kensington & Chelsea Royal London Borough Council and Bushra Saleem v Wandsworth London Borough Council (2015) were handed down by the Court of Appeal.

Ms Maryam Mohamoud (M) and Ms Bushra Saleem (S) both applied for assistance as homeless at Kensington & Chelsea and Wandsworth Councils respectively. Both M and S were single mothers and were provided with temporary interim accommodation pending the outcome of their applications on the grounds that they were both homeless and both in priority need because of their dependent children.

Both M and S were found by the local authorities to be intentionally homeless within the meaning of the Housing Act 1996 Part VII. Both women sought reviews of these decisions out of time, which were refused by the local authorities.

Both local authorities served notices to quit and issued proceedings to recover possession of the temporary accommodation prior to referring the children to Children's Services for assessment. Both women sought to defend the proceedings on the basis that (amongst other arguments) the authorities had failed to discharge their duties under Section 11 of the  Children Act 2004. The defences failed but permission to appeal was granted in both cases.

On appeal, M and S argued that the local authorities were required under Section 11(2) of the Children Act 2004 to have proper arrangements in place to ensure that the best interests of the children were treated as a primary consideration when they discharged their local authority functions pursuant to Part VII of the Housing Act 1996. The local authorities in these cases had no such arrangements in place, they failed pursuant to their section 11 duty to conduct an assessment of the needs of the children in question, in particular before service of the notices to quit, and they did not therefore treat the best interests of the children as a primary consideration when seeking to recover possession of the temporary accommodation.  As a result, the functions exercised pursuant to Part VII of the Housing Act 1996 in these cases were not exercised in accordance with the law for the purposes of Article 8.

The Court of Appeal dismissed the appeal. The duty under Section 11(2)   of the Children Act 2004 is not a free-standing duty. It applies to the way in which existing functions, including those pursuant Part VII of the Housing Act 1996, are carried out but does not actually change or modify those functions.

Requiring local authorities to routinely engage in an assessment of children in homelessness cases under Part VII of the Housing Act 1996 would be extraordinarily burdensome in terms of costs and resources. It would also be futile because the law, including the Part VII procedure (which amongst other relevant provisions allows for an appeal pursuant to section 204) and the requirement for a local authority seeking possession of temporary accommodation provided under Part VII to act compatibly with an occupier's rights under Article 8 (or otherwise face an Article 8 proportionality defence*), provide for these matters to be independently assessed by the Court. As such, the law already caters for the position of children in these circumstances.  

Even if there had been a free-standing duty under section 11 of the Children Act 2004, on the facts of these cases, there was an insufficient link between the failure to carry out the assessment and the making of the possession order and therefore any breach of this duty would not give rise to a defence to the possession claim in any event.

*This case also serves as a reminder that the threshold for raising an arguable case of a lack of proportionality is exceptionally high and that facts can be raised which might bear on the proportionality of an eviction only in the most exceptional cases.   

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