Holmes-Moorhouse v London Borough of Richmond-Upon-Thames

Under the Housing Act 1996, a shared residence order does not by itself establish priority need under s.189(1)(b). The housing authority must make its own evaluative judgment whether dependent children might reasonably be expected to reside with the applicant. Scarcity of public housing is not relevant to that judgment because Parliament has already determined priority within Part VII. Where a contested family-court hearing has considered each parent’s ability to accommodate the children, the authority will normally follow the resulting order, subject to changed circumstances. Where the order was made by consent, the authority must reconsider reasonableness, including whether the children need to live with, rather than merely stay with, the applicant. A residence order cannot be treated as a mere contact arrangement.

The appellant left the council home occupied by his partner, the sole tenant, after a family court made a shared residence order by consent. The three younger children were to spend alternate weeks with each parent. He applied to the respondent housing authority under Part VII of the Housing Act 1996. The authority accepted that he was homeless and eligible for assistance but decided that he lacked priority need under s.189(1)(b), and upheld that decision on review under s.202.

The county court dismissed his appeal on a point of law under s.204, holding that the family order was not determinative and that the authority could consider the practical consequences of providing two homes. The central issues before the Court of Appeal were whether the order determined reasonable expected residence, whether housing scarcity was relevant, and whether the authority had lawfully treated shared residence as merely staying.

Lord Justice Moses gave the leading judgment. Lord Justices Rix and Auld agreed. The appeal was allowed, the review decision was quashed, and the housing authority was ordered to reconsider the application.

1. Section 193(1) of the Housing Act 1996 requires the housing authority itself to be satisfied that priority need exists. The phrase might reasonably be expected to reside requires an evaluative judgment, not merely a prediction of whether the children are likely to stay with the applicant. A residence order is important evidence, but it is not conclusive.
2. Scarcity of public housing is not relevant to the assessment under s.189(1)(b). Parliament distinguished the allocation scheme in Part VI from the priority-need provisions in Part VII and had already determined how scarcity should affect priority. The express references to housing circumstances in s.177(2) and reasonable practicability in s.208(1) reinforced that conclusion.
3. Where a shared residence order is opposed, the family court must consider each parent’s capability of meeting the child’s needs, including accommodation, under s.1(3)(f) and s.1(4) of the Children Act 1989. The housing authority should have an opportunity to make relevant representations. If those matters have been considered and the order is made, the authority normally has no scope for a fresh assessment, save where circumstances have changed. Accommodation may reflect the expected length of the children’s residence.
4. Where the order is made by consent, the family court is not required to undertake the same assessment. The authority must therefore reconsider the reasonableness of the expectation and the extent to which the children need to live with, rather than merely stay with, the applicant. If the expectation is unreasonable, the parent should return to the family court for reconsideration.
5. The reviewing officer erred by equating shared residence with merely staying. A residence order settles arrangements as to the person with whom a child is to live, whereas a contact order concerns visiting or staying. Even a less regular shared residence arrangement cannot be rejected on the basis that the children are only staying with the applicant.

• Court of Appeal (Civil Division) Allowed the appeal, quashed the review decision, and directed the housing authority to reconsider the application according to the stated principles.
• Brentford County Court His Honour Judge Michael Oppenheimer held that the shared residence order was not determinative and that the authority had disclosed no error of law in considering the practical housing consequences.