Bibi, R (on the application of) v London Borough of Camden

Under Part VI of the Housing Act 1996, a residence order is a material consideration but does not dictate the accommodation which a housing authority must allocate. The authority must apply its published allocation scheme to the applicant’s own housing needs, including whether children form part of the applicant’s family or household. Housing shortage and possible under-occupation may be considered, but cannot be used independently to disapply the scheme. A precise 50/50 shared residence arrangement may support recognition of two households, depending on the scheme and the facts. A decision that fails to address these matters, or relies on unsupported assumptions about primary care, is unlawful and must be quashed.

The claimant and her former husband were joint secure tenants. Following their divorce, the former husband obtained separate three-bedroom accommodation after asserting that he had sole care of their two children. A Family Court subsequently made a consent residence order providing for the children to live with each parent on an alternating weekly basis.

The defendant accepted the claimant for re-housing but offered only one-bedroom accommodation. It relied on the children being adequately housed with their father, housing shortage and the under-occupation that would result from offering the claimant family-sized accommodation. The claimant sought judicial review, alleging failure to apply the defendant’s allocation scheme and failure to take relevant considerations into account.

1. Claim succeeded. The defendant’s decision was quashed and remitted for a fresh decision.
2. A residence order under section 8 of the Children Act 1989 is often a highly material consideration under Part VI of the Housing Act 1996, but it does not dictate the outcome. The Family Court applies different statutory and factual considerations from a housing authority. The approach in R v Oxford City Council ex p Doyle [1997] 30 HLR 506 was applicable: a residence order is relevant, but not decisive.
3. The authority could consider housing shortage and under-occupation. Those matters may properly inform a decision under Part VI, but cannot independently displace the authority’s allocation scheme or create a residual discretion to decide the matter as it sees fit.
4. The decision failed to address whether the children were in the claimant’s family and what her household required under the bedroom standard. It focused on the fact that the children were adequately housed with their father, without separately assessing the claimant’s own housing needs. The reasoning that the father was the primary carer because he was working was unsupported and illogical.
5. The authority also failed adequately to address its own manual, which contemplated exceptional cases involving two main addresses or households. The precise 50/50 residence order had been implemented in practice. Whether that arrangement justified family-sized accommodation remained for the authority to decide lawfully; the court did not hold that three-bedroom accommodation was required.
6. More generally, each case depends on the facts and the particular allocation scheme. A usual arrangement in which a child spends more time with one parent may justify recognition of one principal household. Genuine 50/50 shared residence arrangements may justify a different conclusion. Such arrangements are likely to be relatively rare.

First-instance judicial review in the Administrative Court. The claim was allowed, the defendant’s decision was quashed, and the matter was remitted to the local authority for reconsideration.