24/11/2013

Children and Intentional Homelessness

Hurzat v Hounslow LBC (2013) CA (Civ Div) 21 November 2013 [Not on Bailii yet, Lawtel note]

What is the relationship between Housing Act 1996 Part VII and Children Act 2004? Does the duty under s.11 Children Act to safeguard and promote the welfare of children have a bearing on decisions on intentional homelessness under Housing Act 1996? While this case provides a partial answer, it was not, I think, a great case on the facts for testing the interplay of the Acts.

Ms H is married with 3 young children. She applied to Hounslow as homeless following eviction for rent arrears. Hounslow decided she was intentionally homeless as, although her housing benefit had been reduced, they determined that she could have made up the shortfall on the basis of her income and expenditure. Hounslow decide that Ms H had instead spent money on non-essential items, like repaying a debt to a friend and pocket money for the children.

This was upheld on review and S.204 appeal. Ms H appealed to the Court of Appeal.

Ms H argued that in reaching its decision on whether she could pay the rent, Hounslow had failed to have regard to its duty under s.11 Children Act.

The Court of Appeal found:

Following ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, a decision that affected the upbringing of a child had to be made with the well being of the child as a primary concern. Where the decision affected the child more indirectly, the interests of the child would still be primary, but may be outweighed by other factors, R (on the application of HH) v Westminster City Magistrates’ Court [2012] UKSC 25.

Housing Act 1996 s.191 provided no room to deploy the principles of s.11 Children Act when making decisions on intentionality, such that the answers to the questions posed would be the same in any event.

However, the Council had taken into account the expense of Ms H looking after her children in considering whether it was reasonable for her to remain at the property, and rejected her assertions. It was absurd to suggest that whether Ms H had spent too much on pocket money for her children depended on consideration of s.11 Children Act.

This was not a case like Pieretti v Enfield LBC [2010] EWCA Civ 1104, where there had been a failure to have regard to disability. In Pieretti, disability had been relevant to whether the acts leading to homelessness had been intentional.

It was not the case that s.190(2) Housing Act 1996 might not apply when the best interests of the child were considered. The 1996 Act was not rewritten by s.11 Children Act 2004.

Ms H’s appeal dismissed.

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.

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