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

Whether a child requires accommodation under section 20 of the Children Act 1989 is a fact-sensitive evaluative judgment. It is not determined by the separate statutory definition of homelessness in section 175 of the Housing Act 1996. A child’s lack of a legal right to occupy existing accommodation is relevant because it may make occupation precarious, but the material issue is the realistic risk of eviction and the child’s wider circumstances.

The local authority must consider the child’s wishes, existing support and the practical suitability of alternatives. On the unusual facts, it was reasonable to conclude that a nearly 18-year-old child did not require section 20 accommodation where eviction before her birthday was highly unlikely and she wished to remain at home.

The claimant was 17 when her mother died. She remained in her mother’s council flat after a notice to quit expired, although she had no right to succeed to the tenancy. The local authority provided section 17 support but did not accommodate her under section 20 of the Children Act 1989. The housing manager subsequently offered her a new tenancy shortly after her 18th birthday.

Her judicial review was dismissed by the Administrative Court: [2023] EWHC 3330 (Admin). She appealed, contending that homelessness under section 175 of the Housing Act 1996 necessarily meant that she required section 20 accommodation, or that the Council’s contrary decision was unlawful and unreasonable. The status mattered because section 20 accommodation for the requisite period could have made her a former relevant child entitled to leaving-care support.

1. Appeal dismissed. The Court unanimously upheld the dismissal of the judicial review claim.

2. Section 20 of the Children Act 1989 and section 175 of the Housing Act 1996 are in different statutory regimes with different language and structure. Section 20 requires a local authority to make an evaluative judgment as to whether a child requires accommodation. Section 175 principally asks whether accommodation is legally available to the person. Homelessness under section 175 will commonly indicate a need for section 20 accommodation, but it does not invariably establish it.

3. R (G) v London Borough of Southwark [2009] UKHL 26 establishes the primacy of section 20 where that duty is owed. It does not determine the logically prior question whether a child requires accommodation. The 2002 priority-need Order and the statutory guidance likewise recognise that the two regimes may both be relevant without making their conditions co-extensive.

4. The claimant’s fresh argument about departure from paragraph 3.13 of the guidance had not been advanced before the judge. The Court declined to permit it to be raised where the Council might otherwise have adduced evidence about its contemporaneous consideration. In any event, it saw substantial force in the Council’s arguments that the guidance might not cover a case in which the authority had never concluded that the child required accommodation, and that objectively good reasons for any departure had been found.

5. The claimant’s status as a trespasser was relevant only through any resulting practical risk of eviction. The judge had lawfully considered the absence of an immediate eviction risk, her wish to remain with her boyfriend and cats, the short period before she turned 18, and the support already provided under section 17. Those matters entitled the Council reasonably to conclude that she did not require section 20 accommodation.

• Court of Appeal (Civil Division): Appeal dismissed: [2024] EWCA Civ 1545.
• High Court of Justice, King’s Bench Division, Administrative Court: The claimant’s judicial review application was dismissed by a Deputy High Court Judge: [2023] EWHC 3330 (Admin).