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12/10/2007

Homeless with shared residence order

[Edit Feb 2008 – Richmond have been given permission to appeal this judgment to the House of Lords. No date yet.]

An interesting situation, if perhaps an increasingly common one, has just been set out in the Court of Appeal case of Holmes-Moorhouse v London Borough of Richmond-Upon-Thames [2007] EWCA Civ 970.

The situation is a family break up where, by consent or otherwise, a s.8 Children Act 1989 shared residence order has been made for the children. One parent then applies to the local authority as homeless and claims resident children as priority need.

In this case, the local authority said no priority need for the father as the mother was receiving benefits and had housing for the children. Upheld on review and on County Court Appeal.

In a Judgment that takes a survey of the current situation, the Court of Appeal held that in the case in question, the local authority was wrong in that its decision referred to the children ‘staying’ with the father and living with the mother. The Court was clear that

A child who is residing with each parent is living with each of them; he is not living with one and staying with the other.

But beyond this, the Court gave guidance on the assessment of homeless applications by those with residence orders.

To note:

Where the shared residence order is contested, the local authority has had the opportunity to make representations on housing issues. It is therefore for the local authority to follow the decision of the Family Court.

Where the shared residence order is made by consent, and the local authority has not had the opportunity to make representations, then

there is every reason that the local authority should consider afresh the reasonableness of an applicant’s expectation that a dependent child will reside with the applicant. Furthermore, in considering the reasonableness of that expectation, a local housing authority is not just entitled, but obliged to consider the extent to which the children’s needs require the child to live with, as opposed to stay with, the applicant.

The requirement is that the local housing authority be able, carefully, to enquire into and consider the children’s needs in assessing the reasonableness of the parents’ expectation.

The suggestion, via R (Bibi) v Camden London Borough Council [2005] 1 FLR, 413, seems to be that a 50/50 residence order should be sufficient to make the ‘staying with’/’living with’ difference.

Where the Local Authority, having considered afresh the reasonableness of the applicant’ expectation, refuses the housing duty, the applicant should return to the Family Court for a reconsideration of the residence order.

Should the order be confirmed by the Court, one would imagine that a fresh homeless application could be made, this time with the equivalent of a contested order, but the Court doesn’t say this.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

12 Comments

  1. John Bolch

    As you say, this is going to become an increasingly common situation, as shared residence arrangements become more popular. It does raise some questions though: shared residence is usually agreed, so there is no order – will a parent seeking local authority housing have to obtain an order? Do the children have to spend exactly 50% of their time with each parent?

    Reply
  2. contact

    I’ve partly responded to your question about agreed shared residence on your blog, but for the purposes of others, I said this:

    I would be very concerned about a homeless applicant with an agreement but no Order on shared residence. For a homeless application, the issue here, the Local Authority would require clear evidence that the children ordinarily reside or would reasonably be expected to reside with the applicant. In the absence of a Court Order, by consent or otherwise, the authority is unlikely to accept the say so of the applicant, particularly if, as is usually the case, the children are at that point resident with the other parent and that parent has the assorted benefit awards for child care. The authority will doubtless say that the children merely ‘stay’ with the applicant, and that they are not resident with him or her. This is why the court order is key in the Richmond case.

    Now, the 50% issue is, to say the least, unclear. It is mentioned in the Judgment by reference to another case which was concerned with Part VI housing allocation – the Council Housing list route – not a Part VII homeless application. As far as I can see, the 50% was not criticised, but not expressly adopted either. It is also worth noting the discussion of the Code of Guidance at Paras 12 and 13 of the Judgment. That said, clearly the proportions of residence, at least in an order by consent, will clearly play a part in the Local Authority’s assessment of a reasonable expectation of residence. The situation with a contested Order is not clear, but given para 48, I doubt that 50% would be vital.

    It is worth noting that the consideration of available housing resources by the Authority does apply to Part VI housing list applications, where it doesn’t to Part VII homeless applications.

    Reply
  3. John Bolch

    The need for an order is unfortunate – obviously we (i.e. family lawyers) and our clients would prefer to keep things out of court.

    As to the 50% issue, I suspect you’re right, although no doubt most LAs would jump at the chance to refuse housing if it is much less than 50%.

    Reply
  4. contact

    I’m not saying that an Order is necessary, but I can see huge difficulties with a homeless application without one. And the trouble is it falls under the legitimate consideration of facts by the Local Authority, so a bit tricky to take to a County Court Appeal on a point of law under s.204 Housing Act 1996 if refused on first decision and review – not impossible though.

    Reply
  5. William Flack

    The questions which are left crying out to be answered by this judgment are:

    1. How much less than 50% of the time can a child spend with a homeless applicant before they can lawfully be treated as not residing with them? And

    2. If residence is not measured in time then what are the criteria for determining when a child is residing with a parent as opposed to staying with them?

    Paragraph 48 of the judgment clearly envisages that a child can still reside with a second parent even though they spend less than 50% of the time with them. This means that it is not simply a question of time. This is just as well because in practice a 50-50 split is not going to be achievable. A handover at precisely midday on Wednesday for instance is likely to be impossible to achieve once let alone to repeat every week. Equally in practice the arrangements made by separated parents are such that the child usually spends sufficiently less than half the week with the second parent for the local authority to be able to treat that arrangement as staying contact rather than residence. It is therefore unlikely that it will be possible to run many test cases concerning 49% or 40% arrangements being claimed as residence.

    On a public policy level I would have thought that the Courts are going to be extremely reluctant to allow challenges of authority decisions in this area where doing so would open the floodgates of families requiring a second property where the parents split.

    Perhaps the question cannot be answered at all in terms of establishing a general rule to be applied to all families based on the amount of time which the child spends in each household. Instead I would expect that the general proposition will continue to be that a child can only be treated as residing (by agreement rather than pursuant to an Order) with one parent unless there are exceptional circumstances which mean that the child has to spend a lot of time living in two places. It is hard to think of an example but a medical condition which meant that one parent might be incapacitated for say two or three days each week might be a possibility.

    My answer to the two questions (without reference to any authorities I am afraid) are:-

    1. Very little indeed
    2. Only very exceptional circumstances.

    I would be very interested to know if any family lawyers out there can give examples of arrangements which led to the Courts making shared residence orders where that was not agreed. Presumably these will give some guidance as to what the exceptional circumstances might be.

    I would suggest that if families with more than one child are splitting up and thinking of how best to arrange residence/contact they might think of having one child reside with each of them and sharing a room if they were both at either property at the same time. This is far from perfect but on the face of it both parents would be entitled to be housed under the homelessness legislation as they would each have a child residing with them. Clearly there would have to be evidence such as who received Child Benefit and where the schools recorded the children as living. I can’t say whether this arrangment would be seen to be in the children’s interests or a scam to get a property for each parent.

    Reply
  6. contact

    William, I’d have to agree with you on the unanswered issues. Local Authorities will very likely take 50/50 as a minimum on consent orders, even though the judgment clearly doesn’t set that proportion.

    The criterea of ‘residence’ will also be a problem, although a Court order resulting from a contested hearing will, in terms of this judgment, be very hard for a local authority to argue with, even if not 50/50.

    There will be more cases on this, I have no doubt.

    Reply
  7. tanya

    This is very much like whats happening to me at present , im soul tennant of my home .but my ex partener lives with me and refuses to leave ,he claims no benefits and lives off mine…….he has applied for a residence order against me for my four children three of whom are his the eldest being mine form a previous relationship.
    YET he is technically homeless and is only doing this so the local authourity will be forced to home him, my solicitor has apllied for an occupation order at the same time on my behalf so that i dont lose my house if he gets residence, as i feel if this happens they(local housing authority) will take my house and give it to him……
    we have had ahousing officer who refuses as mentioned to belive in shared care seeing as mentioned before that it is acase of staying with one and living with the other, most local athourities seem to take the view that shared care is only access,they should be forced by the courts not to take this stance in my opinion as shared care is just that, shared care.
    IVE EVEN OFFERED my ex shared care if he moved out but because the local authority take the view that the children are catered for they have no obligation to house him.
    which brought him to take on the stance of applying for aresidence order only so he can then get a house ….
    im curious as to what would happen if he wins residence and i win occupation .

    Reply
  8. Mark P

    I see from the Inside Housing news feed that Richmond Upon Thames have obtained leave to appeal to the Lords.

    Reply
  9. Annie

    My son and his girlfriend split 6 weeks ago.
    The girlfriend left the family home with their youngest, and left my son with the oldest child, being nearly 3 years of age. At first, the girlfriend made a statement to the court saying that she would care for the youngest, and that my son would care for the oldest. We hear in the grapevine that despite her already allowing this, and her already being in two homes in that time, and ment to be going into a 2 bed property soon, that she is going for sole custody of both children despite her only seeing the oldest child on her own once.
    how do courts decide if a joint order is possible? It would stop alot of heartache, and in particular my sons’ oldest child is very happy as he has always been in the family home.
    Would the courts be in favour of joint residence moreso where both parents live in the same town.
    Please help.

    Reply
  10. Nearly Legal

    @Annie: I can’t give advice on individual matters on the blog. In any case, this is a family law matter, outside my field.

    Reply
  11. Donna

    i have 4 children 3 with my ex husband we have a court order for shared residence we equally have all three children 7 out of 14 nights, i am living in a 1 bed apartment run by homeless help even thou i have a court order ive been told because i dont claim for the children then its not there responsiblity 2 help house the children, im even having difficulty with them being allowed to stay there with me. so even with a court order they still wont help you
    thanks

    Reply
    • NL

      Donna,
      Yes – The House of Lords decided that a shared residence order did not mean that the children were necessarily part of the household for homeless application purposes. We wrote about it here.

      Reply

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