As will be clear,  P (A Child: Use of S.20 CA 1989) [2014] EWFC 775 is a family law case, but one which crosses with housing law. My suggestion is that it sadly shows that Family lawyers, and indeed Family judges really need housing lawyers with them at all times. It also illustrates the sheer lengths that the Royal Borough Of Greenwich will go to to avoid accepting a homeless main duty.

To skip most of the judgment, this concerned a child, P, and his parents, F & M. P was born to them in 2009, “whilst the parents were living apart. The father lived with the paternal grandfather (PGF) at an address in the Royal Borough of Greenwich (RBG). The mother was living in temporary accommodation at the time in London Borough of Redbridge (LBR).”

In 2012, LBR had taken P into foster care because of concerns over the parents’ ability to look after the child. “Those concerns ranged from poor standards within the home, inadequate supervision leading to a significant number of injuries, and reluctance to access medical attention for P. Both parents seemed to suffer a degree of cognitive difficulties which made parenting challenging for them. They had something of an unsettled lifestyle. From his birth until June 2012, P had resided with his mother in a number of properties sometimes with his father present in the home and on other occasions with her alone”.

LBR had then, frankly, messed about wholly inadequately in s.20 Children Act and family law terms for two years, for most of which P was placed with his grandfather PGF. The full and rather shocking history of the faffing and “shockingly and inexplicable” failures by LBR are set out in the judgment and will no doubt be dealt with in detail by family law bloggers.

Suffice it to say, after the half hearted commencement of proceedings for a placement order, LBR acknowledged that with adequate support, the parents could indeed probably care adequately for P.

That left a big problem. The parents did not have “settled independent accommodation”.

There is a clear recommendation that the transition plan can only start when the parents are in settled independent accommodation. Once in that accommodation and once they have readied it for the arrival of P, he can be gradually introduced back into his parents’ care with the support of Symbol outreach workers and in the knowledge that once they have receded the extended family will be living locally. The accommodation therefore needs to be the place in which the father and P have lived for most of their lives – Royal Borough of Greenwich (RBG).

But RBG were not only not interested in providing accommodation and support, they were set against it.

On 10th Oct RBG filed a position statement setting out in 3 short paragraphs that:
a. It did not agree with the making of a supervision order in its favour;
b. It was concerned at the timescales for rehabilitation because “the parents have not secured accommodation” and because RBG questioned the parents ability to care for P;
c. If the supervision order was made then RBG would continue to be responsible until P was living with his parents permanently – which suggests that once rehabilitation was complete they would withdraw which is wholly contrary to advice.

The hearing on 10th November was futile. The parents were no further forward in securing accommodation and it was clear that they were unlikely to receive help from RBG. Provision was made in that order for a statement to be filed by RBG housing and in default for an application to be made for the director of housing to attend the next hearing on 28th November. A statement was filed and through no error on the part of the parties the request made for the attendance of the director was not dealt with. That was unfortunate because the statement in the bundle is of little assistance. It suggests that RBG is not responsible for housing the parents, that they cannot be assessed as if caring for a child because they are not, and that if and when they do have a child living with them they cannot expect to be given any additional assistance with housing as there are many other equally needy people on the housing list in the borough.

At the hearing on 10th November, LBR agreed to fund a worker from Symbol to assist the parents in their attempts to be accepted by RBG as homeless, or in priority need. I do not intend to recite what the worker from Symbol, Ms Duffy, relates as her conversations with RBG housing. Suffice to say that she asserts that RBG children’s services have effectively instructed the housing department not to offer assistance because in their view P is not a “Greenwich” child. I intend to get to the bottom of that exchange and make findings as to what has been said. If such comments were made then it demonstrates a level of bad faith in RBG that will be of importance to anyone charged with reviewing these housing decisions. I would observe, however, that the attitude such comments betrays is entirely in keeping with the attitude revealed in the way that RBG has dealt with this application to date.

And what was the basis on which RBG refused to deal with the parents as homeless? (Not forgetting that RBG cannot lawfully refuse to deal with a homeless application, but this was not, it appears, put before the court). Well, according to the charity worker assigned to assist the parents, this was how RBG responded:

a. RBG first refused to accept that the father had the necessary connection with the borough when he clearly has;
b. The parents have not been assessed as needing housing with P because he is not in their care, in spite of the fact that RBG know my intention is to rehabilitate P with them and in spite of their duty to assess him as a child who is reasonably expected to be in their care;
c. They are assessed as needing a one bedroom property as they have no dependant and so if they insist on two they are advised that they will encounter bedroom tax issues;
d. Even though LBR has offered to pay a deposit and first months rent on a privately rented property RBG refuses to give the parents advocates or LBR the list of acceptable private properties as the parents are not assessed as being in sufficient need;
e. On 13th Nov – in response to advice that they should present as homeless by attending at housing office – the parents were there for 7 hours with their advocates during which they were finally allowed to submit a homeless application as a couple but not allowed to include P as they were told that he would have to be presented to the housing office to be included.

We should note that RBG contest these assertions, but RBG didn’t actually manage to provide any witness evidence on this, let alone by the director of housing, who was supposed to attend the hearing, but didn’t.

If the assertions by the charity worker are accurate (and they will sound familiar to many) then any housing lawyer would have had a judicial review pre-action protocol letter off the printer instantly. On the reasons allegedly given by RBG:

a. is not a reason to refuse an application. Straightforwardly unlawful.
b. is, I presume, based upon a misapprehension of Holmes-Moorhouse v LB Richmond upon Thames [2009] UKHL 7 [our report]. But Holmes-Moorhouse concerned a separated family, where the mother had settled accommodation and there were shared care orders. Here, the homeless household is father, mother and very clearly P is to be reasonably expected to reside with them, by the order of the court. RBG’s refusal would not only be unlawful but probably an article 8 breach as well.
c. Again, P was to be reasonably expected to reside with them. Bedroom tax issues would only kick in once permanent accommodation was found, but P would likely be residing. This is, of course, not a reason to refuse a homeless application, just a question of suitability of accommodation provided.
d. This is frankly barking. Without even accepting and deciding on a homeless application, RBG cannot have reached a decision on the nature of the support, assistance or duty owed to the household.
e. This is simply wrong. And also unlawful.

It appears that the position had changed somewhat by the time of the hearing in this case and that RBG had moved away from unlawful stalling and stonewalling. The Court, having described RBG’s actions as having ‘sought to put every possible obstacle in the way of an application to join the housing register’ (actually a homeless application), goes on to record the following:

I now turn my focus away from LBR to the RBG. The evidence before me today seems to suggest that there has been a complete and utter failure of the RBG to meet its responsibilities to provide housing to this family or even allow them to apply as a family such that these parents are prevented from bringing to an end the 2 ½ years (half of his life) that P has spent as a “looked after” child. Indeed the information that I have received suggests that the RBG has acted in bad faith and has sought to engineer a situation in which they would be freed of the obligations I might impose pursuant to a Supervision Order. I make no findings in that regard but intend to investigate that matter further when this case returns next week. I observe, however, that the most recent position statement from RBG indicates that the housing department are now satisfied that it can be reasonably be expected that P will reside with his parents and they will now consider him as part of any application for housing. However the final paragraph of that statement indicates that the RBG has failed to grasp what it is that this family needs in order to succeed in their reunification because it ends by pointing out that the most likely outcome of the application for housing will be the provision of “temporary accommodation” and that this may include accommodation outside of the Borough.

And there, I’m afraid, the Court fails to grasp what housing under Part VI and Part VII Housing Act 1996 means these days. Yes, a homeless application will mean temporary accommodation and quite possibly out of borough – though the child care provisions and orders would be a strong argument against the suitability of out of borough accommodation. It appears that RBG thought that falling back on the legal minimum it would be required to provide would also help to stymie the Children Act responsibilities that RBG Children Services were clearly keen to avoid.

The Judgment went on to add

I will also expect that this Judgment is read and with that in mind would remind everyone that when considering outcomes for children we are enjoined to look to the services which are available for each realistic outcome. In this case I am not looking for any services out of the ordinary; I am looking for this family to be housed. These parents are vulnerable. This child is being prevented from returning to his family because they have nowhere to live. That cannot be right. It cannot be right to suggest that they are not in priority need or that they will not be so until they attend at the housing office with P. This child cannot live with his parents unless or until they are in settled accommodation. I have now fixed RBG with the duties imposed upon them pursuant to an interim supervision order. I expect them to attend the next hearing with a timetable and a solution to this problem.

With respect, the Family Court simply does not understand the disjunction between Childrens Services and Housing departments, one that the House of Lords (as was) grappled with often enough, but to no great success. Nonetheless, it appears that pressure from the Court, including a fresh demand that RBG’s housing director appear before it at the next hearing, had an effect. In a postscript to the Judgment we find:

At the first listed hearing after the one at which I gave the Judgment transcribed above, RBG attended, asserting that they had found accommodation for the family which could be taken up by 15th December. A transition plan drafted by LBR was drafted on the basis that they would take up residence by Monday 15th. It transpired that this was not a tenancy or even an offer of tenancy but rather a referral or nomination to be considered for a tenancy by a local housing association. It also became clear to me upon hearing from the senior housing officer who attended on the day that juggling the housing resources of this London authority meant that this family was only ever going to be top of the list when they were recognised as an emergency and it had taken my order that he attend a hearing for them to be so recognised. That is not an acceptable way of working by public authorities in my view. It was known to RBG that the situation was as I have described it as long ago as September. I suggest that RBG ensures that it has systems which enable it to respond more appropriately to such emergencies.

Happily, at the second hearing on 16th December, the tenancy was confirmed as signed. The transitional arrangements had to be redrafted. I hope and expect that the parents will be assisted to take up their housing.

But it is, of course, not right that RBG’s allocation policy would accept the parents’ position as being ‘an emergency’ that would give them high priority under Part VI for allocation. This case may have been resolved, but it is a marker of the disjunction between family and housing law and of the lack of understanding of housing law and Council’s housing obligations by the family courts. These situations are going to become more common. If RBG hadn’t taken such a stupidly obstinate and wrong position in the first place, attracting the Court’s ire, it is doubtful that there would have been such a relatively speedy resolution. The ’emergency’ was that the Director of Housing was going to have to face an unhappy judge. (And of course, a nomination to a housing association tenancy is a perfectly fine way of doing things under Part VI allocations, to be fair to RBG, even if the judge didn’t grasp that).

As mentioned above, this is likely to be an increasing issue for family courts. The lesson, for all concerned, is have a housing lawyer handy. Also, do remember to demand the attendance of the head of the council’s housing department at a hearing. It works wonders.

[Update. It turns out that the parents did indeed get assistance from housing solicitors, Philcox Grey, soon after the hearing and before the tenancy position was resolved. ]