Conde, R (on the application of) v London Borough for Lambeth

A local authority may use Children Act 1989 powers to provide accommodation for a parent where necessary to safeguard or promote a child’s welfare. Those powers do not ordinarily provide an alternative housing scheme for families refused accommodation under the Housing Act. An EEA national genuinely seeking work has Community-law rights which must be considered, but those rights do not ordinarily require temporary accommodation under section 17. Schedule 3 to the Nationality, Immigration and Asylum Act 2002 must be read subject to Community rights. Requiring a work seeker to return to the place from which she came may be lawful where the same approach could apply to a UK national and is proportionate.

The claimant, a Spanish national and work seeker, came to the United Kingdom with her two young children after domestic violence. She was refused assistance under the homelessness provisions of the Housing Act and later sought accommodation and financial support from Lambeth under section 17 of the Children Act 1989.

Lambeth concluded that the children were not children in need for section 17 purposes and that Schedule 3 to the Nationality, Immigration and Asylum Act 2002 prevented support. The central issues were whether Community-law rights required support, whether the proposed return to Spain was discriminatory or disproportionate, and whether a reference to the European Court was necessary.

1. Claim dismissed. The authority’s refusal to provide section 17 support was lawful. The interim injunction was discharged, with the authority indicating that accommodation would remain available for seven days. Costs were awarded in principle, subject to the applicable legal-aid order. Permission to appeal was refused.
2. Section 17 of the Children Act 1989 permits accommodation for a parent where it is provided to safeguard or promote the welfare of a child. It is not principally a housing provision. The Housing Act remains the proper vehicle for housing families, including temporary accommodation. The authority may maintain a policy which provides accommodation for children where necessary but does not allow parents to obtain housing priority denied under housing legislation. The judge relied on R v London Borough of Barnet, ex parte G [2004] 2 AC 208.
3. Schedule 3 to the Nationality, Immigration and Asylum Act 2002 generally excludes an EEA national from support under section 17, but paragraph 3(b) preserves support necessary to avoid breach of Community rights. The exception must be considered individually.
4. A genuine work seeker may remain for a reasonable period while seeking employment. Six months was identified as a usual rule of thumb, subject to the facts and to real prospects of employment within a relatively short period. The reasoning in Collins v Secretary of State for Work and Pensions C-138/02 was applied to distinguish benefits facilitating access to employment from section 17 support, which had no direct employment purpose.
5. The proposed return to Spain did not discriminate against the claimant. A local authority may, where reasonable and proportionate, refuse support to a newcomer and require return to the place from which she came, just as it could require a UK national who came to London seeking work to return elsewhere in the United Kingdom. There was no need for a reference to the European Court.

First-instance judicial review proceedings. The claim was dismissed by the High Court (Administrative Court). Permission to appeal was refused.