Holmes-Moorhouse v Richmond upon Thames

The House of Lords considered the relationship between a family court's shared residence order under the Children Act 1989 and a local housing authority's duty under Part VII of the Housing Act 1996 to determine whether an applicant has "priority need" because dependent children "reside or might reasonably be expected to reside" with him (section 189(1)(b)). The court held that a housing authority is not bound by a family court order and must make its own objective assessment, in the context of a statutory scheme for allocating scarce housing resources, whether the children might reasonably be expected to reside with the applicant. The authority may take into account the practicalities and scarcity of housing when deciding what is reasonable. A reviewing officer's error as to the intended legal effect of a shared residence order did not, however, necessarily invalidate the review decision if the decision could stand on other grounds.

This appeal arose after a family court made a shared residence order providing that three children should spend alternate weeks and half of school holidays with each parent. The father, who had been ordered to leave the family home and had no other accommodation, applied to Richmond upon Thames Council for homelessness assistance under Part VII of the Housing Act 1996 and sought a review under section 202 when the authority decided he was not in priority need.

The central legal question was whether a shared residence order binds a housing authority for the purposes of determining priority need under section 189(1)(b) ("a person with whom dependent children reside or might reasonably be expected to reside"). The father appealed the reviewing officer's decision through the County Court and then to the Court of Appeal, which held that a family court decision on shared residence precluded the housing authority from denying that the children might reasonably be expected to reside with the father, absent intervention in the family proceedings. The House of Lords allowed the Council's appeal.

The House analysed (i) the differing statutory contexts and purposes of the Children Act 1989 and the Housing Act 1996, (ii) the objective standard in the phrase "might reasonably be expected" and the relevance of local housing scarcity and allocation policy under sections such as 177(2) and 175(3), and (iii) the limited power of the family court to secure or direct housing resources. The Lords concluded the housing authority must make its own decision, applying an objective and contextual assessment that may properly take account of the scarcity of housing and the practicalities of providing a second home for children already living with the other parent. The court also held that a reviewing officer's mistaken description of the effect of a shared residence order did not invalidate the decision where there were ample and independent reasons supporting the outcome.

Nature of relief sought: a finding of priority need and the provision of accommodation under Part VII of the Housing Act 1996.

Issues framed by the court: whether a shared residence order by a family court binds a housing authority in determining priority need under s 189(1)(b); the meaning of "might reasonably be expected"; the permissible considerations for a housing authority (including scarcity of housing); and the effect of an error in a review decision.

Reasoning in brief: family court welfare determinations and homelessness priority decisions operate in different statutory schemes and ask different questions; the housing authority must apply an impersonal objective standard in the context of scarce housing resources; the authority may take account of whether it would be reasonable to provide a second home to enable shared residence; and a review decision may survive despite a textual error if its other reasoning supports the conclusion.

Appeal allowed. The House of Lords held that a housing authority is not bound by a shared residence order and must decide, under Part VII of the Housing Act 1996, whether children "might reasonably be expected to reside" with an applicant by applying an objective test in the context of scarce housing resources. The reviewing officer's error about the legal effect of the family court order did not invalidate the decision because there were ample independent grounds for the outcome.

The father's homelessness-review decision by Richmond upon Thames was affirmed on review (decision dated 3 May 2006). The father appealed to the County Court; Judge Oppenheimer dismissed his appeal on 27 October 2006. The Court of Appeal allowed the father's appeal and quashed the decision ([2007] EWCA Civ 970; reported [2008] 1 WLR 1289). The House of Lords allowed the Council's appeal and restored the circuit judge's decision.