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Homelessness – when unitary authorities aren't.


R (Hassan) v Croydon LBC (Admin Court 13 January 2009. Only reported  so far in Arden Chambers eflash 336) was a judicial review on the discretion to secure accommodation pending s.202 review under s.188(3) HA 1996 and whether a potential duty under s.20 Children Act 1989 by the authority should be considered.

The applicant, together with her children aged 10 and 3, had fled Doncaster in 2005. In an initial application to Croydon, she stated she had fled through violence by a gang of youths. She was found not homeless. In a subsequent application,in 2006, she stated that the real reason was domestic violence, of which she had been ashamed. Croydon found her intentionally homeless on s.202 review. After living in various temporary addresses, the applicant applied again as homelessand was given temporary accommodation. Croydon found her intentionally homeless from Doncaster. The applicant requested a s.202 review and continued temporary accommodation under s.188(3). Croydon declined to exercise the discretion.

The next day, the applicant’s solicitor provided new information – that the son said he had also been beaten by the father in Doncaster and that the applicant had told the solicitor she wanted to kill herself and her children. The solicitor asked for a reconsideration. Croydon again declined to exercise the discretion.

The applicant issued Judicial Review proceedings, arguing that

i) the s.184 decision was based on the decision in the second application, which was manifestly flawed in that it found that the applicant had suffered domestic violence but had left Doncaster intentionally.

ii) As the authority said it accepted that the applicant has stated an intention to kill herself, it was irrational not to take the case as exceptional.

iii) As the applicant’s children would be children in need for the purposes of s.20 Children Act 1989 if the applicant was not accommodated, the Authority, as a unitary authority, would owe them the s.20 duty. In the light of this, it was irrational not to leave the applicant in her present accommodation, and also a breach of Art. 8.


The decision in respect of the second application was not manifestly flawed.

The Authority had appropriately assessed the new information provided by the solicitor and, in view of the history and context of the case, it was not an irrational decision to find her case was not exceptional.

To require a unitary authority to consider the existence of a s.20 CA duty when deciding on the exercise of the s.188(3) HA discretion would make such decisions unnecessarily complicated. The authority could not be require to take into account such a future duty.

The Art 8 argument was rejected. The JR claim failed.

While turf wars between social services and housing in unitary authorities are hardly news, the run of recent cases, particularly on accommodation for children, has been highly disapproving of attempts to dump duty on one department by another, with recommendations for interaction within unitary authorities.

While the Court’s attention to the administrative burden of the HPU is fair enough, I’m slightly surprised to see an endorsement of the idea that no consideration of the LA’s broader potential duties needs to be involved. That said, it would be hard to imply a duty to consider this into HA 1996.

[We should note that Emily Orme of Arden, who acted for the Claimant, presumably wrote the useful report.]

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.


  1. Emily Orme

    In relation to the issue over the reasons why the Claimant left Doncaster, the local authority decision on the substantive s.193 duty effectively turned on a funding that because there had been violence in the past, it did not necessarily follow that there would be violence it the future. This was found not to be an irrational conclusion. It was pointed out that there is no other more obvious indicator of future conduct than past conduct, but this argument was rejected.

    The conclusion regarding the s.20 duty noted that at present there is no direct authority on the point. Reference was made to R(G) v Barnet (2004) 2 AC 208, HL, by the Claimant, in particular the comments of Lord Nicholls. Nicholls made several very useful observations (albeit obiter)about the importance of parents in the lives of children and the ideal to be aspired to of keeping parent and child together. The Barnet case focused on parents seeking to effectively ride on the back of the s.20 duty owed to their children which was, as HHJ Mackie QC rightly observed, a different point to the one raised by Ms Hassan which concerned a situation where the family were already being housed together.

    The point was a simple one – if they are already in accommodation and together, and the LA are going to come under a future duty to house the children, why not consider leaving them where they are under s.188(3) discretion and give the family stability as well as saving the LA administrative time and trouble. That must be a relevant consideration.

    At a time when unitary authorities in particular are being encouraged to employ “joined-up thinking”, and where the consideration of future duties may also avoid repetitive litigation as well as being more cost effective for the local authority concerned, it is a surprising result – to say nothing to the Article 8 implications.

    Section 213A of the 1996 Act already places requirements for housing authorities and social services authorities to share information in certain circumstances. It is therefore not such a quantum leap to expect a housing authority that is part of a unitary authority to consider the possible future duties of social services, particularly where those duties are so obvious and already effectively linked by legislation.

    • J

      And will there be an appeal? :-)

    • NL

      First, lovely to see you commenting here and thanks for the further info.

      I’m without benefit of judgment but if Croydon’s reasoning on the ‘intentional’ decision really was ‘well, he might not do it again’, then the High Court’s apparent endorsement of this as a response to DV to put it mildly very disappointing indeed.

      On the s.20 issue, it would clearly be a good idea and eminently reasonable thing to do for the HPU to consider potential s.20 duties when making a s.188(3) decision. But – playing devils advocate – does ‘reasonable’ equate to such an imperative that it is irrational not to do so? The existence of s.213A might be argued against such an implied duty, as it sets out the conditions where referral from the HPU to Social Services is (more or less) required. The absence of any amendment to s.188(3) could be taken as deliberate. I’m also thinking of R (M) v Hammersmith & Fulham LBC [2008] UKHL 14, where the Lords refused to find different conditions for unitary as opposed to non-unitary authorities (looking at para 44) – although granted s.213A does impose such a differential obligation.

      That said, such an obligation to consider potential s.20 duties would certainly make sense.

      On the Art 8 point, when would the breach occur? If it involved a break up of the family via s.20 the it would surely be the social services decision, rather than the s.188(3) decision – the alternative, as far as I can see, is that s.188 is incompatible to the extent that it does not provide for children to whom a s.20 duty may be owed as a factor for consideration in the decision. But again this is devil’s advocate – I hope there is an appeal…


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