DF, R (on the application of) v Essex County Council

Homelessness under Housing Act 1996 does not automatically establish a need for accommodation under the separate scheme in the Children Act 1989. The two statutory tests require separate, fact-sensitive evaluations.

A local authority may consider statutory homelessness and trespass when deciding whether accommodation is required, but they are not generally mandatory considerations. The authority must assess the wider circumstances, including the adequacy of care, the immediacy of any eviction risk, available support and safeguarding concerns. Statutory guidance must be considered, but may be departed from for clear, case-specific reasons. A vulnerable child’s preference for accommodation with an adult partner does not require the authority to provide an arrangement inconsistent with safeguarding requirements.

The claimant was aged 17 when her mother died. She continued living in the mother’s council flat, although the tenancy could not pass to her and a notice to quit was served. The local authority assessed her as a child in need under the Children Act 1989, but concluded that she did not require accommodation under section 20 because she remained in the home and eviction was unlikely before her eighteenth birthday.

The claimant challenged that decision, arguing that she was homeless under section 175 of the Housing Act 1996, necessarily required section 20 accommodation, had been given inaccurate information about available accommodation, and had not refused the options offered. She also challenged the authority’s refusal to treat her as a former relevant child after she turned 18.

1. The application for judicial review was dismissed. The claimant was homeless for the purposes of section 175 of the Housing Act 1996 at the latest when the notice to quit expired. Her occupation arose from a bare licence granted by her mother, which ended on the mother’s death. No contractual licence vested in the Public Trustee, and no continuing licence from the Public Trustee was evidenced. The claimant therefore occupied as a trespasser and had no statutory or Article 8 right restricting recovery of possession: [2023] EWHC 3330 (Admin) [54]-[70].

2. Homelessness under section 175 did not necessarily mean that the claimant required accommodation under section 20 of the Children Act 1989. The provisions address different questions. Section 20 required a separate evaluation of whether accommodation was required on the particular facts. A child might be homeless under section 175 but remain in suitable accommodation for the immediate or foreseeable future: [71]-[75].

3. Statutory homelessness and trespass were potentially relevant considerations, but were not mandatory considerations under section 20. Their significance depended on the circumstances. The authority’s failure to consider them expressly did not make its decision irrational because it had considered the claimant’s accommodation, support and likely eviction position in the round, and their inclusion would probably have made no material difference: [76]-[81], [115]-[129].

4. The authority was entitled to depart from the statutory guidance. It gave clear reasons based on the claimant’s stable occupation until her eighteenth birthday, the absence of imminent eviction, the accommodation offered on turning 18, and safeguarding concerns about placing a vulnerable child with an adult boyfriend who was neither parent nor carer. The authority was not required to secure unregulated independent accommodation for the claimant, her boyfriend and cats: [84]-[91], [124]-[128].

5. The claimant had not clearly refused the section 20 options. A vulnerable child’s wish to consider the proposals, or preference for different accommodation, did not amount to refusal. Any refusal had to be fully informed and clearly expressed, with all relevant information about looked-after and former relevant child support: [92]-[99].

6. The authority’s overall decision that the claimant did not require accommodation was reasonable and rational in public law terms. The relevant assessment included the wider issue of care, not merely the existence of a roof and basic amenities. The possibility of living with the claimant’s father was not a realistic immediate option because of the troubled relationship and safeguarding concerns: [121]-[129].

7. The authority had lawfully considered, and was entitled not to exercise, its residual discretion to treat the claimant as a former relevant child under section 23C of the Children Act 1989. The corrective discretion identified in R (HP) v Royal Borough of Greenwich depended on relevant unlawfulness, which had not been established. The claimant’s difficult circumstances did not reach the exceptional threshold for exercising the residual discretion: [130]-[137].

First-instance judicial review proceedings in the Administrative Court. The application was dismissed. Consequential orders were reserved for further argument.