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Housing and Children Act – homeless 17 year olds


A couple of brief notes on two judicial reviews on housing, the Children Act 1989 and ‘looked-after children’.

BC, R (On the Application Of) v Surrey County Council (2023) EWHC 3209 (Admin)

BC was a child who had been asked to leave the family home because of drug use and threats from dealers. He approached the local authority for support. A family friend initially provided him with accommodation, but the local authority did not. The local authority then, through a number of meetings and assessments, sought to keep that accommodation going for BC for the longer term.

When BC turned 18, he was asked to leave the accommodation. He subsequently spent time sleeping rough, without any assistance by the local authority. Following a homeless application, he was placed in supported accommodation, and the present judicial review was issued, claiming that BC was a ‘relevant child’ prior to turning 18, and was now a former relevant child under s.23C Children Act, and owed the ‘other assistance’ duty.

Held – the section 20 accommodation duty had arisen when BC first presented to Surrey as he was a child in need.

“it cannot seriously be suggested that a child excluded from home and who is “sofa surfing” from day to day in this way, snatching showers and either having to wear the same clothes day after day or managing sometimes to get a change of clothes from home, is not in need.”

BC was clearly without suitable accommodation. He was sofa surfing and had been ejected from the family home. The accommodation with the family friend was precarious and day to day.

The steps taken by Surrey subsequently meant that the accommodation with a family friend did amount to section 20 accommodation, but not until 17 October 2019, when SCC had called the family friend to ask if she could accommodate BC following his sectioning for being suicidal.

From this date BC had been accommodated under section 20 for 11 weeks before his 18 birthday, not the 13 weeks required to be a ‘relevant child’. It followed that he was a “qualifying young person” under section 24 Children Act 1989.

The consequences of this would have be to agreed by the parties, or for further submissions.

SCC acted unlawfully in failing to treat BC as a ‘looked after child’, and that was a continuing breach in respect of ongoing duties.

As a side note, SCC had refused to provide disclosure in response to a pre-action protocol letter, instead insisting that a subject access request was made. This was time-consuming and unnecessary.

DF, R (On the Application Of) v Essex County Council (2023) EWHC 3330 (Admin)

DF had been living with her mother, a tenant of Colchester City Council. Her mother died when DF was 17. Colchester served notice to quit, but did not take any further action on possession proceedings. Essex CC did not provide accommodation, but said that any section 20 accommodation would be accommodation regulated under Care Standards Act 2000. Ms DF was living with her boyfriend and her cats, neither of which would be accommodated in regulated accommodation.

Colchester agreed to offer a one bed flat to DF when she turned 18 and this happened. Ms DFF brought a judicial review of Essex’s alleged failure to provide section 20 accommodation and failure to treat DF as a formerly relevant child once she turned 18.

The High Court held:

i) Essex were wrong to consider that DF was not homeless, even where Colchester were apparently not initiating a possession claim. She was a bare licensee of her mother, and a trespasser after her mother’s death.

The claimant had no right that would restrict the landlord’s right of recovery. While CBH did not need to obtain a court order for her eviction, the claimant accepts that in all probability CBH would have applied for such an order. That would have materially affected the timescale within which the landlord could regain possession and end C’s occupation of the flat.

ii) That did not necessarily mean she required section 20 Children Act accommodation. It was a question of fact.

iii) Statutory homelessness was a relevant factor to be considered by Essex in considering any section 20 duty, even if not mandated under statute, but not decisive in itself.

iv) It was open to Essex in considering what accommodation could be offered under section 20 to bear in mind the then forthcoming Supporting Accommodation (England) Regulations 2023/416, which restricted section 20 accommodation for 16 and 17 year olds to that regulated under the Care Standards Act, and also reasonable, as a safeguarding measure, not to offer accommodation that would allow others to stay overnight.

v) Essex had not actually offered specific section 20 accommodation, and DF had not refused an offer. she had indicated what her preferences fro accommodation were.

vi) Taking all the factors into account, it was reasonable for Essex to decide that DF did not require section 20 accommodation at that time.

vii) In view of that, Essex was right not to exercise its discretion to treat DF as a formerly relevant child.

No relief granted and claim 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.


  1. Michael

    On the DF case, why didn’t she inherit her mother’s tenancy upon her mother’s death? I understand she was 17, but could the tenancy not have been held in trust for a few months until she turned 18? Also, if she was a family member of her mother on the date of her mother’s death, is it right that she was treated as a trespasser and arguably could have been evicted by CBH without a court order?

    • Giles Peaker

      Can’t succeed as a minor. Any trust arrangement would have to have been discretionary. As it is, Colchester did grant her a tenancy of another flat when she turned 18.

      The absence of any general ‘family member’ right of occupation is discussed at 45-64 of the judgment.

      • Michael

        Reading the case again, on the issue of succession, I guess it depends on any succession rights in the tenancy agreement as it is a post-Localism Act tenancy. I’ve read plenty of post 2012 Secure Tenancies which extend succession rights to family members beyond spouse/civil partner to children, but that mustn’t have been the case here.

        As for the conclusion that s3(2) PEA 1977 doesn’t bite in cases like this, instances where secure tenants pass away with family members residing in the property who are not entitled to succeed are not rare. It would be a brave local authority to simply change the locks to the property once the NTQ has expired in such a case and not apply to court for a possession order!

        • Giles Peaker

          It would also depend on an statutory or tenancy based succession rights – statutory now restricted to spouse/partner only. But it remains that a minor can’t succeed.

          I agree that most councils would look to possession proceedings, but it is not that rare that a tenant dies without there being a successor among the occupants.

        • Michael

          A minor can’t succeed to the legal interest in the tenancy, but they can succeed to the equitable interest, as per the judgment in Kingston-upon-Thames v Prince. As far as I’m aware, that is still good law.

        • Giles Peaker

          Sure, and as per Newham LBC v R (A Child) [2004] EWCA Civ 41

          But if intestate, tenancy held by Public Trustee, and then a host of issues…

          But in any event, tenancy post dated the spouse/partner only change, as you note.

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