Holmes-Moorhouse(FC) (Original Respondent and Cross-appellant) v London Borough of Richmond upon Thames (Original Appellants and Cross-respondents)

Whether dependent children might reasonably be expected to reside with a homeless parent under section 189(1)(b) of the Housing Act 1996 is determined by an impersonal, objective standard. The standard must be applied within the statutory scheme for allocating scarce housing resources.

A shared residence order is relevant but does not bind the housing authority. The authority may consider that children who have a home with one parent cannot reasonably be expected to receive a second home under the homelessness scheme. Exceptional needs may justify a different conclusion.

For threatened homelessness, the relevant circumstances are those expected when homelessness occurs. An immaterial error in a review decision does not justify quashing a decision whose lawful basis remains intact.

Following their separation, the parents agreed to an order under which three children would spend alternate weeks with each parent. The father had to leave the family home and lacked other accommodation. He applied to the Council under Part VII of the Housing Act 1996.

The Council accepted that he was homeless but decided that he lacked priority need because the children could not reasonably be expected to reside with him if this required publicly funded accommodation as a second home. Its reviewing officer affirmed that decision. Judge Oppenheimer dismissed the father's appeal on a point of law.

The Court of Appeal, in [2007] EWCA Civ 970, reported at [2008] 1 WLR 1289, held that the consent order did not determine the statutory question. It nevertheless quashed the review decision because the officer had misunderstood the legal effect of shared residence. The central issues before the House were the relationship between family-court residence orders and homelessness decisions, the relevance of scarce housing resources, and whether the officer's error invalidated the decision.

1. Disposition. The House unanimously allowed the Council's appeal and restored Judge Oppenheimer's decision. Lord Hoffmann delivered the leading speech, with whose reasoning Lord Scott, Lord Walker, Baroness Hale and Lord Neuberger agreed.

2. The statutory standard. Per Lord Hoffmann, the expression “might reasonably be expected to reside” in section 189(1)(b) of the Housing Act 1996 imposes an impersonal, objective standard. It is neither the applicant's subjective expectation nor the authority's unfettered preference. The standard draws upon contemporary social norms but must be applied within Part VII's scheme for housing homeless people.

3. Scarce housing resources. Per Lord Hoffmann, the authority was entitled to consider the purpose for which the question was asked: determining priority in allocating a scarce resource. Parliament's imposition of housing duties did not require scarcity to be ignored when applying a priority criterion involving judgment. Ordinarily, it would require exceptional needs before children already housed with one parent could reasonably be expected to receive a second home so that they could reside with the other.

4. Separate statutory functions. Per Lord Hoffmann, a family court applies the welfare principle under the Children Act 1989, whereas a housing authority applies the homelessness scheme. A shared residence order was relevant evidence, and a fully reasoned contested judgment might carry substantial weight, but it could never determine the authority's decision. The authority should not intervene to oppose a residence order, and the family and housing procedures should remain separate.

5. Threatened homelessness and the review decision. Per Lord Hoffmann, where an application concerns threatened homelessness, residence must be assessed at the time when homelessness is expected to occur. The reviewing officer misunderstood the effect of the residence order, but that error was irrelevant. He answered the correct statutory question and had ample grounds for his conclusion.

6. Family-court guidance. Baroness Hale, in observations expressly agreed by Lord Walker and Lord Neuberger, explained that a family court must choose the best option actually available. It cannot create accommodation or make an order which depends upon a housing authority allocating resources in a particular way. A residence order should provide a practical solution and should not be used to exert pressure upon another public authority.

7. Review decisions. Lord Neuberger, in additional observations expressly agreed by Lord Walker, said that County Courts should interpret housing review decisions realistically and benevolently. Such decisions are prepared by experienced housing officers rather than legislative draftsmen. An error warrants quashing when it undermines the basis of the decision, but not where it is irrelevant, trivial, confined to one independent reason, or incapable of affecting the outcome.

1. House of Lords: In [2009] UKHL 7, unanimously allowed the Council's appeal and restored the County Court decision.
2. Court of Appeal: In [2007] EWCA Civ 970, reported at [2008] 1 WLR 1289, held that the consent residence order did not determine the Council's decision. It nevertheless quashed the review decision for legal misdirection and remitted the matter for reconsideration.
3. County Court: Judge Oppenheimer dismissed the father's appeal on a point of law on 27 October 2006.
4. Statutory review: On 3 May 2006 the Council affirmed its decision that the father, although homeless, did not have priority need.