HLPA Homelessness Law Update John Gallagher: Shelter Alice Hilken: 1 Pump Court

Transcription

1 HLPA Homelessness Law Update 2010 John Gallagher: Shelter Alice Hilken: 1 Pump Court September 2010

2 Acknowledgment: These materials contain extracts from seminar materials previously prepared by members of the Housing & Community Care Team at 1 Pump Court Chambers, and from training notes prepared on behalf of Shelter. Thanks are due in particular to Zia Nabi and Nik Nicol of 1 Pump Court. 1

3 HOMELESSNESS; APPLICATIONS FOR ASSISTANCE, INTERIM ACCOMMODATION AND REASONABLE TO CONTINUE TO OCCUPY APPLICATIONS FOR ASSISTANCE: GATEKEEPING PRACTICES 1. A number of recent cases have considered whether the practice or approach of a housing authority in an individual case amounts to gatekeeping ; (ie where the authority seeks to evade or delay its duties under Part 7). 2. The threshold for triggering the duty to make enquiries (i.e where the authority has reason to believe a person may be homeless or threatened with homeless 1 ) is a low one. In the vast majority of cases, the making of the application itself will mean that it is difficult if not impossible for the housing authority not to believe that the applicant may be homeless or threatened with homelessness. 3. There is no requirement that an application should be in writing or any particular form and there is no power to defer any enquiry (R (Aweys & Others) v Birmingham CC [2007] EWHC 52 (Admin) [2007] H.L.R. 27 at [8] per Collins J). Nor, where the statutory criteria are met, is there any power to defer the duty to accommodate pending such enquiries Non- statutory enquiries when dealing with homelessness applications, have been expressly declared to be unlawful (R v Harrow LBC ex p Fahia [1998] 1 WLR 1396 HL; LB Tower Hamlets v Rikha Begum (2005) 1 WLR 2013 CA). 5. Authorities sometimes seek to argue that they are engaging in homelessness prevention measures and need only turn to Part 7 when these have failed. In R (Aweys & Others) v Birmingham CC [2007] EWHC 52 (Admin) [2007] H.L.R. 27, Collins J rejected this as being unlawful, holding 1 S184 HA S188(1)HA

4 that such measures could not: - lawfully be used to defer consideration of a homeless application. All steps taken to avoid homelessness are of course laudable. But any such steps must be taken in parallel to the carrying out of the duty under Part VII. R (Kelly & Mehari) [2009] EWHC 3240 (Admin) 10 November It was the practice of Birmingham City Council to require all homeless applicants to complete an `Emergency Accommodation Request form. This was used to assess whether or not they would be at risk of harm unless provided with temporary accommodation by the respondent. If the housing officer was not satisfied that an applicant was at risk of harm, s/he was told to return to his previous address and to wait for an officer from the respondent authority to visit to discuss his housing situation. The form did not contain any reference to the criteria in section 188 of the 1996 Act K provided the council with a letter from his mother which stated that she did not want him to live with her, together with letters from doctors which established that he suffered from a range of behavioural disorders. He completed the Emergency Accommodation Request form and was refused temporary accommodation. 8. M lived in a room which was a converted toilet in a house occupied by other single men. The room contained only a single bed. His wife and son joined him, and the landlord took away his keys. He applied for housing assistance but, following completion of an Emergency Accommodation Request form, it was concluded that he was not homeless. 9. The claimants issued proceedings for Judicial Review, claiming that:- a. The Emergency Accommodation Request form represented an unlawful fetter on the council s discharge of its duty under s188, 3 Under which, if the local housing authority has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, it is under a duty to secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under Part 7 [emphasis added]. 3

5 since s188 did not require that there should be a risk of harm before interim accommodation could be provided; b. The council s decision not to provide them with interim accommodation was unlawful; and c. The council had a policy or a consistent practice that was intended to avoid, or at least had the effect of avoiding, its obligations under section As well as seeking interim relief (in the form of an order that they be provided with interim accommodation), the Claimants sought declarations as to the legality of the council s practices and procedures. Following the granting of interim relief, an order was made for a rolled up hearing of the permission application to be followed immediately, if successful, by the substantive applications. 11. Hickinbottom J granted permission, and went on to hear the substantive claim. In his judgment 4 he restated the principles to be applied when considering homelessness applications and the issue of interim accommodation repeating that the thresholds based on reason to believe were low. An authority cannot defeat the prompt engagement of Section 188 by introducing filters or delays, e.g. by making non- statutory enquiries, or by pursuing courses outside the statutory scheme. 12. He held that the decisions in both cases were unlawful, declining to accept the council s submission that the errors in both cases were made by individual officers, rather than the result of the council s policy or practice. 5. He found that there was strong evidence of a system failure by reason of the council considering whether there was a need for emergency accommodation, rather than whether the applicants satisfied the statutory test for interim accommodation under the Act. Declarations were made to this effect. 4 Para 7 5 Para 39 4

6 O Callaghan v London Borough of Southwark Lambeth County Court 6 November 2009 Legal Action May 2010 p In July 2007, the Appellant, aged 17, approached the Southwark council seeking assistance as a homeless person. The council did not at any stage refer her to its Children s Services department, but instead dealt with her application under Part 7 HA However, it did not at any stage notify the Appellant of any decision 6 in respect of her application for assistance. 14. The Appellant was first accommodated in bed and breakfast accommodation and then from about the start of August 2007 in a room at the Gateway Foyer. Two months later the Appellant s difficulty in obtaining housing benefit and alleged non- engagement with support led to the issuing of a notice to quit. She was evicted. 15. In April 2008, the Appellant, now pregnant, re- approached the council. The council then notified her 7 that it considered her to be intentionally homeless by reason of the loss of her Gateway accommodation. The Appellant requested a review of this decision. The first review decision upholding the intentionality decision was withdrawn. The second review decision again upheld the intentionality decision. 16. The council argued that the Gateway accommodation was not interim accommodation, but was provided under its homelessness prevention regime, and that by accepting it, the Appellant s application for assistance had been brought to an end. Consequently she had ceased to be homeless and so no decision on her first application had been necessary. 17. HHJ Welchman quashed the decision, varying it to a finding that the Appellant was not intentionally homeless. He accepted the submission that there was no third way. The Appellant had to be dealt with either under the Housing Act 1996 (as a homeless person) or under the Children Act 1989 (as a child in need). At no stage had she been referred to Children s Services. As there had not been a formal decision in respect of the Appellant s application for assistance before the loss of the Gateway 6 As required by s184 HA Pursuant to its duty under section 184 Housing Act

7 accommodation, the loss of that interim accommodation could not give rise to a finding of intentionality. The prevention of homelessness was commendable but only against the background of the statutory Part 7 framework and not as an alternative to it. It could not be used as a way of seeking to avoid the Council s statutory responsibilities. R (Raw) v LB Lambeth [2010] EWHC 507 (Admin) 12 March Lambeth Council operated a rent deposit scheme for the purpose of assisting homeless persons to find private rented accommodation by paying the deposit. The scheme was managed by Lettings First, a separate management organisation owned by the council. 19. R made a homelessness application to the council. He was interviewed and asked if he would consider renting in the private sector if the authority paid his deposit. He replied that he would consider doing so, and was referred to Lettings First. He was asked to confirm, by signing a copy of the scheme s terms and conditions, that, by accepting assistance from Lettings First, he was abandoning his homelessness application. 20. Before signing the terms and conditions, R took advice from his solicitors who wrote to the council accusing them of gate- keeping practices, and requiring them to resume their enquiries into the homelessness application, as well as demanding that the scheme s terms and conditions be amended to prevent future instances of gate- keeping. The council denied that the scheme amounted to gate- keeping, but agreed to resume their enquiries. 21. Before the council had concluded their enquiries, R issued a claim for judicial review. He sought orders requiring the authority to continue with their enquiries and to assist him with obtaining private sector accommodation under the scheme, and declarations (a) that the decisions to stop such assistance had been unlawful and (b) that the authority s policy of ceasing enquiries if a homeless person had been referred to the scheme was unlawful. 6

8 22. After the proceedings were issued, the council accepted the full housing duty to R, and confirmed that he was also entitled to assistance under the rent deposit scheme. They invited him to withdraw his claim on the basis that it was now academic. He refused to do so. 23. The Administrative Court dismissed R s claim, holding that, as a general principle, it was not in the public interest for the courts to hear academic claims. It might exceptionally be in the public interest to hear an academic case, but this was not such a case, as there was no evidence of other cases in which the council had applied their allegedly unlawful policy, nor was there evidence that the issue would need to be resolved by the courts in the near future. Nevertheless, the Court expressed the view that, if it was the case that the council had a blanket policy of ceasing enquiries in all cases where a homeless applicant had been referred to the rent deposit scheme, it was likely that such a policy was unlawful, and would be construed as an attempt to avoid the duties imposed by the 1996 Act Other common examples of gatekeeping are:- a. Appointing an applicant to a date in the future; b. Requiring proof that a person is homeless or in priority need, e.g. a written eviction notice or a doctor s report; c. Referring young people to other projects or organisations. THE DEFINITION OF REASONABLE TO CONTINUE TO OCCUPY 25. In determining whether an applicant is homeless, the issue is whether the applicant has accommodation. A person is homeless if he/she has no accommodation in the UK or elsewhere which is available for his/her occupation and which that person has a legal right to occupy. 9 However, the Act provides that a person shall not be treated as having 8 Paras of the judgment 9 s175(1) 7

9 accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. 10 Birmingham City Council v Ali & Others, Moran v Manchester City Council [2009] UKHL 36, (2009) 1 WLR 1506, (2009) 4 All ER 161, (2009) HLR The question in both of these cases was whether accommodation which a local housing authority had decided was not reasonable for the continued occupation of the occupants (so that they were homeless within the meaning of section 175), could nonetheless be suitable accommodation capable of being used in performing the authority s main housing duty to the occupants under section 193(2). 27. The Birmingham cases concerned homelessness applications by six different families. In each case, the council had accepted a duty to secure suitable accommodation for the applicants under s.193. In most cases, the families had been accepted as statutorily homeless because they were severely overcrowded in their existing accommodation, which the council had consequently determined it was not reasonable for them to continue to occupy. In one case, A lived with his wife and six children in a two- bedroomed property. He was registered disabled, and one of his children, aged 6, was severely disabled. Some six years after the council had accepted the main housing duty towards him, he was still waiting for a suitable offer. 28. The question was whether it was open to the council to accept that it was not reasonable for a family to continue to occupy their present home, but to continue to accommodate them there until something appropriate for them could be found. 29. A further issue in the Birmingham cases concerned the council s allocations scheme. Under the scheme, homeless households who had been placed in temporary accommodation by the council awaiting permanent re- housing were placed in Band A, whilst Homeless 10 s175(3) 8

10 households whom the Council accepted that it had a duty to re- house, but who were not currently in temporary accommodation arranged by the council, were placed in Band B. People in Band A took precedence over those in Band B. 30. In Moran the issue was whether a women s refuge was accommodation which it was reasonable for Ms Moran to continue to occupy, so that she became homeless intentionally within the meaning of section 191 (1) when she behaved in such a way that she was evicted. 31. Baroness Hale of Richmond, giving the main judgment in the House of Lords, said that: a. The issues to be determined in Ali were: i. Whether accommodation which it is not reasonable to expect the applicant to continue to occupy can nevertheless be suitable accommodation for the purposes of the housing duty under section 193 of the Act; ii. Whether the Council s allocation policy was unlawful in giving greater priority to people in temporary accommodation than to people left in accommodation which it was not reasonable for them to occupy; and iii. What were the remedies for breach of the duty to secure suitable accommodation under section 193(2). b. The issues to be determined in Moran were: i. Whether a women s refuge is accommodation for the purposes of the Act, and ii. If it is accommodation, whether it is accommodation which it would be reasonable for the person to continue to occupy. 32. It was held: - a. Section 175(3) and section 191(1) were looking to the future as well as to the present; 9

11 b. The duty to provide accommodation under both section 188 and section 193 could be satisfied by the provision of temporary accommodation; c. Accommodation which might be unreasonable to continue to occupy for a long period, (so that a person was homeless within the meaning of section 175), might be reasonable to continue to occupy for a short period; d. The new test: It was proper for a local authority to decide that it would not be reasonable for a person to continue to occupy the accommodation which was available to him or her, even if it was reasonable for that person to occupy it for a little while longer, if it would not be reasonable for the person to continue to occupy the accommodation for as long as he or she would have to do so unless the authority took action 11 e. Accordingly that accommodation could be used as a method of discharging the authority s obligation in the short term, whilst better quality, longer term accommodation was located; f. This meant that the woman in the refuge remained homeless (within the meaning of section 175(1)) as the refuge was not reasonable for a person to continue to occupy indefinitely 12, and so could not be intentionally homeless. g. Given the constraints on local authorities, the Court should normally be slow to accept that a local authority has left an applicant in his unsatisfactory accommodation too long. Nevertheless there will be cases where the Court ought to step in and require an authority to offer alternative accommodation, or declar that they are in breach of their duty by failing to do so. 11 Para Para 52 10

12 33. The speech of Baroness Hale also confirmed that it is not possible to cease to be homeless by being provided with interim accommodation pending enquiries. 13 She also commented 14 that: There may come a case in which we should re- examine the circumstances in which a finding of intentional homelessness ceases to colour all future decisions under the Act but there is no need for us to do so now. 34. Issues that arise as a result of this judgment: - a. When does short term become long term? b. What is to stop a person leaving the short- term accommodation, on the basis that he cannot be found to be intentionally homeless? c. When considering intentionality, to what extent can events post- dating the loss of the accommodation from which an applicant is said to be intentionally homeless be taken into account, so as to remove the mark of Cain? NOT REASONABLE TO OCCUPY WHERE PROBABILITY OF VIOLENCE 35. Under section 177(1) (1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence [or other violence] 1 against him, or against (a) a person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expected to reside with him. [(1A) For this purpose violence means (a) violence from another person; or (b) threats of violence from another person which are likely to be carried out; and violence is domestic violence if it is from a person who is associated with the victim 36. The Code of Guidance when discussing domestic violence states at paragraph Para Para 65 11

13 The Secretary of State considers that the term violence should not be given a restrictive meaning, and that domestic violence should be understood to include threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between persons who are, or have been, intimate partners, family members or members of the same household, regardless of gender or sexuality. Yemshaw v Hounslow Borough Council [2009] EWCA Civ December The applicant had been the victim of emotional, psychological and financial abuse from her husband. She fled the matrimonial home. She argued that although she had never been the victim of an assault, it was not reasonable for her to continue to occupy her home because it was probable that this would lead to her being subjected to domestic violence. 38. The issue for the Court was whether domestic violence should be given an extended meaning as advised in the Code, or whether a physical assault was required to satisfy the definition of violence (as had been advised in the previous Code of Guidance, and as the Court of Appeal had decided in Danesh v Kensington and Chelsea RLBC (2006) EWCA Civ 1404, (2007) 1 WLR 69). 39. The Court of Appeal refused to allow for a wider definition than the statute, holding that despite the change in the Code of the Guidance, it was bound by Danesh, which required physical contact. The Court also stated that a wider interpretation of the term would give rise to practical difficulties for housing authorities. The claimant has obtained permission from the Supreme Court to appeal this decision. The appeal is due to be heard in the UKSC in December REPEAT HOMELESSNESS APPLICATIONS 40. There is no limit prescribed by statute to the number of applications for assistance that may be made. Where a further application for assistance is not identical to or based on exactly the same facts as the predecessor application, the housing authority is required to treat the further 12

14 application as a valid application (R v Harrow LBC ex p Fahia [1998] 1 WLR 1396 HL; LB Tower Hamlets v Rikha Begum (2005) 1 WLR 2013 CA; Code of Guidance paragraph 6.27). R (Gardiner) v Haringey LBC [2009] EWHC October In her first homelessness application, Haringey Council found Mrs. Gardiner to be not homeless on the basis that there was accommodation available to her in Columbia. Mrs. Gardiner s argument that the accommodation was not reasonable for her continued occupation because of her daughter s autism was rejected. A subsequent county court appeal failed. Permission was obtained for a second appeal. However, Mrs. Gardiner also sought to make a second application for assistance, which the council refused to accept, on the basis that it was based on exactly the same facts as her previous application. 42. Mrs. Gardiner argued that there had been a factual change from the first application, namely her daughter s recent progress following treatment and further evidence about the risks to her daughter if she returned to Columbia. The council decided that these were not new facts, rather a predictable course of events which had been considered in the first application. 43. Burnett J quashed the decision. The second application was not identical to the first, as the new evidence showed that the effect on Mrs. Gardiner s daughter if she were forced to leave the UK would not simply be worse, but would have a profound adverse effect on her. THE DISCRETION TO PROVIDE INTERIM ACCOMMODATION PENDING REVIEW 44. Under section 188(3) housing authorities have a discretion (not a duty) to provide accommodation pending review. Similarly, under section 200(5) housing authorities have a discretion to provide accommodation pending 13

15 review of a decision that they intend to refer the case to another authority under the local connection referral process. 45. In deciding whether to provide interim accommodation pending review the housing authority has to carry out a balancing exercise. It must consider (a) the merits of the case that the original decision was flawed and the extent to which it can properly be said that the decision was one which was either contrary to the merits or was one which involved a very fine balance of judgment (b) whether consideration is required of new material, information or argument which could have a real effect on the decision under review (c) the personal circumstances of the applicant and the consequence of an adverse decision on the exercise of discretion (R v Camden LBC ex p Mohammed (1997) 30 HLR 315 QBD; R v Newham LBC ex p Lumley [2001] 33 HLR 11 CA). R (Gebremarium) v City of Westminster [2009] EWHC August In, Cranston J dismissed a claim against a decision refusing to provide accommodation pending review of a referral decision, holding that the effect of the decisions in ex p Mohammed and R v Brighton & Hove Council ex parte Nacion [1999] 31 HLR 1098 was that the Court would only intervene in such a decision in an exceptional case. In this particular case the council had clearly demonstrated in its decision letter that it had considered the Mohammed factors, and that was fatal to the challenge. 47. This decision can be usefully contrasted with R (Paul-Coker) v LB Southwark [2006] EWHC 497 (Admin), where the complete absence of any explanation or reasoning in the decision letter refusing interim accommodation pending review demonstrated that the ex p Mohammed balancing exercise had not been fully or properly carried out by the decision- maker, despite lip service having been paid to it, which rendered the decision not to provide interim accommodation pending review (in an eligibility case) irrational. 14

16 48. It should also be pointed out that Nacion was a decision concerning a renewed application for leave to apply for judicial review (and so is persuasive rather than binding), and related to a claim for interim accommodation pending appeal rather than review. It can therefore to some extent be distinguished from an interim accommodation pending review case (Brooke LJ made this distinction in ex p Lumley at paragraphs 43-48). ELIGIBILITY RIGHT OF RESIDENCE AS CARER OF CHILDREN IN EDUCATION Ibrahim v London Borough of Harrow/Teixeira v LB Lambeth European Court of Justice Cases C- 310/08 and C- 480/08 23 February Ms I was a Somali national living in the UK. Her husband was Danish, though they were now separated. He had started working in the UK in October In February 2003 Ms I joined him with their children. The two eldest children started in state schools shortly after their arrival in the UK, and remained in education. In May 2003 Ms I s husband left his job and claimed incapacity benefit. 50. Ms I applied to the Council for assistance under Part 7 of the Housing Act 1996 as she and her children were homeless. She was found to be not eligible for assistance, on the grounds that neither she nor her husband was exercising a Community law right to reside in the UK. 51. Ms I s appeal to the county court was allowed. Article 12 of EC Regulation 1612/68 provides that the children of an EU national who is, or has been, employed in a member state are to be admitted to that state s education scheme under the same conditions as the nationals of that state. In the ECJ case of Baumbast v Secretary of State for the Home Department, C- 413/99, Article 12 had been construed so as to confer rights of residence on the children and their primary carer. The nationality of the primary 15

17 carer was not a relevant factor. Article 12 was designed to enable children to complete their education without suffering any disadvantage as a result of their parents exercising free movement rights. Accordingly, Article 12 gave Ms I s two eldest children a right of residence, and as their primary carer, Ms I also had a right of residence. The Council appealed to the Court of Appeal. 52. The Court of Appeal decided that the position under EC law was not clear and referred the case to the European Court of Justice (ECJ). It was arguable that the ruling in Baumbast had not survived the later EC Directive 2004/38. The questions for determination by the ECJ concerned whether I and her children enjoyed a right of residence only if they complied with the narrower conditions of the 2004 Directive, and whether or not they were self- sufficient. 53. Similar questions as to whether an EU citizen could enjoy a right of residence derived from her children s Article 12 right to education arose in Teixeira. In this case, T was a Portuguese citizen who came to the UK in 1989 with her Portuguese husband. T worked from 1989 to In June 1991, their daughter (P) was born. T and her husband then divorced. In 1995, when P started school, T was not working, but subsequently she did work for short periods from time to time. She last worked in the UK in All P s schooling had been in the UK. She was now undertaking a childcare course. In April 2007, T became homeless and applied to Lambeth LBC for assistance under Part 7 of the Housing Act She was found not to be eligible for assistance. T argued that P had an independent right of residence under Article 12 of EC Regulation 1612/68 and that as P s primary carer, she also had a right of residence. T s appeal was dismissed and she appealed to the Court of Appeal. The case was referred to the ECJ to be heard with Ibrahim. 54. The ECJ held that the rights conferred under Article 12 of the 1968 Regulation were independent of other provisions of EU law (including the 16

18 2004 Directive) and that Baumbast remained good law. It was clear that Article 12 had not been repealed and there could be no argument that it had ceased to apply when EC Directive 2004/38 came into force. Accordingly: Where an EU citizen works or has worked in a host member state, his child is entitled to reside in that state in order to pursue and complete his education. To integrate the worker s family into the host state, the children must be able to complete their education there. This can only happen if the right to live in the member state for the purposes of education continues whether or not the EU citizen is still working. The right granted by Article 12 is granted to children in education and is independent of any rights of residence enjoyed by their parents. The wording of Article 12 shows that the right applies to the children of former workers. Article 12 requires only that the child had lived with either one of his parents at a time when at least one of them resided in the host state as a worker. The parent who is the primary carer of that child is also entitled to reside in the host member state until the child reaches the age of majority or for so long after that as the child continues to need the presence and care of that parent in order to be able to pursue and complete his education; The right of the primary carer to reside in the host member state under Article 12 of the 1968 Regulation is not dependent on that person being self- sufficient; nor is that right conditional on one or both of the parents having been in work when the child started education. 17

19 There was no specific age limit on the right to reside granted to the child by Article 12. The right was to reside in order to complete the education. Although children who had reached the age of 18 were assumed to be capable of meeting their own needs, the right to reside of the primary carer could continue beyond that age if the child continued to need the presence and care of the parent in order to complete her/his education. DWP Guidance 55. The Department of Work and Pensions has published guidance on the effects of these two decisions (Memo DMG 30/10: Right to Reside Parent and Primary Carer of a Child in Education, obtainable at pdf) and, in relation to housing benefit and council tax, a corresponding HB/CTB Circular A10/2010 ( ). 56. Note, however, that para 10 of DMG 30/10 states that the child of an A8 national migrant worker will not gain rights under Article 12 of Regulation (EEC) 1612/68 unless and until the migrant worker has completed the necessary 12 months registered work. The same advice appears in para 12 of HB/CTB Circular A10/2010. This restriction seems highly questionable, and should be challenged. An appeal on this issue has been taken by Child Poverty Action Group before the Upper Tribunal, and a decision is awaited (appeal no CIS/647/2009, heard on 16 September 2010). Secretary of State for Work and Pensions v Lassal Opinion of Advocate General Trstenjak Case C- 162/09 11 May L was a French national who lived in the UK as a worker from September 1999 to February 2005, when she returned to France for ten months to visit her mother. She came back to the UK in December 2005 to look for work. She claimed jobseeker s allowance from January to November 2006 and then claimed income support (IS) on the basis of her pregnancy. Her 18

20 claim for IS was refused on the ground that she had no right to reside in the UK. 58. L appealed to the Appeal Tribunal, which held that she was entitled to IS because she had a permanent right to reside in the UK on the basis of her five years lawful residence as a worker. Regulation 15 of the Immigration (European Economic Area) Regulations provides that certain EEA nationals shall acquire the right to reside in the UK permanently, notably an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years. The Secretary of State appealed against this ruling to the Court of Appeal. Secretary of State for Work and Pensions v Lassal [2009] EWCA Civ The issue in the appeal was whether L had a permanent right of residence in the UK under Article 16 of Directive 2004/38/EC, from which reg 15 of the EEA Regulations derived. The Directive came into force on 30 April 2006 and the Secretary of State for Work and Pensions (DWP) argued that Article 16 did not allow for periods of residence preceding that date to be taken into account. The Court of Appeal dismissed the Secretary of State s appeal, but referred the following question to the European Court of Justice (ECJ) for a preliminary ruling: Is Article 16(1) of Directive 2004/38/EC to be interpreted as entitling [an] EU citizen to a right of permanent residence by virtue of the fact that she had been legally resident, in accordance with earlier Community law instruments conferring rights of residence on workers, for a continuous period of five years which ended prior to April 2006? 19

21 Advocate General opinion 60. The Advocate General (AG) 15 has expressed the opinion that periods of residence in the UK preceding the coming into force of Directive 2004/38/EC do count towards the permanent right of residence under Article 16. She said that: Article 16 is to be interpreted as meaning that a Union citizen who resided legally for a continuous period of five years in a host Member State, before expiry of the period for transposition of the Directive on 30th April 2006, has a right of permanent residence, in so far as she was not absent from that Member State for a period exceeding two consecutive years. 61. The AG agreed that the wording of Article 16 itself was inconclusive concerning whether periods of residence prior to 30 April 2006 were to be taken into account. However, the purpose of Article 16 was to promote social cohesion and integration within Europe and clearly five years continuous residence was regarded as a sufficient degree of social integration for EU citizens to become entitled to a permanent right of residence in one of the host Member State. The fact that the continuous five years were accrued before or after 30 April 2006 was irrelevant. Lekpo-Bozua v LB Hackney [2010] EWCA Civ The Housing and Regeneration Act 2008 introduced a new class of `restricted persons. If an authority is satisfied that a homeless applicant is in priority need only on account of a restricted person within his household, the authority can and must discharge the full housing duty by arranging for the offer of an assured shorthold tenancy to be made to the applicant by a private landlord: s.193(7ad), 1996 Act. 63. L was a British citizen, who lived with her niece, O, now aged 18. O was a French Citizen, and had been living in the UK with L for about 9 years. Following domestic violence, L applied to the Council as a homeless 15 Note: The AG s opinion is not the final decision of the ECJ and does not bind the Court to reach the same decision. The ECJ usually follows the AG s opinion, but it is not obliged to do so. 20

22 person. At the date of application, O had been 16 years old, and the case proceeded on the basis that she was a dependent child of L. The Council decided that she was homeless and eligible for assistance, but that O did not have a right to reside in the UK. O was therefore a `restricted person within the meaning of s.184(7), HA The Council therefore decided that it would arrange for an offer of an assured shorthold tenancy to be made to L. 64. L argued that O was lawfully present in the UK, and was not a restricted person. Her appeal to the county court was dismissed, and the Court of Appeal dismissed her further appeal. To avoid being a `restricted person, O needed to have a right to reside in the UK under the Immigration (European Economic Area) Regulations She was not a worker, job- seeker, self- employed person, self- sufficient person or student, and, therefore, did not fall within the scope of the 2006 Regulations. The fact that O had been in the UK for nine years did not assist her. Although regulation 15 provided that a permanent right to reside could be obtained after five years continuous residence, it was based on that residence being lawful (i.e. in accordance with the 2006 regulations). No free- standing right to reside was conferred by the EU Treaty or any of the Directives made under it. The Council had therefore been right to find that O was subject to immigration control and hence to treat L s application as a restricted case. QUALIFYING PERSONS: RETAINING WORKER STATUS 65. A person does not cease to be a worker or self- employed person the instant they stop working. Reg 6(2) of the Immigration (EEA) Regulations 2006 provides: A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if 21

23 (a) he is temporarily unable to work as the result of an illness or accident; (b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and - (i) he was employed for one year or more before becoming unemployed; (ii) he has been unemployed for no more than six months; or (iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged. (c) he is involuntarily unemployed and has embarked on vocational training; or (d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment. 66. Reg. 5 sets out a number of situations which come within the definition of worker or self- employed person who has ceased activity, including people who have reached retirement age and people who stop work because of a permanent incapacity for work. 67. Note that paras (2)(b)(i) to (iii) of Regulation 6 (above) are all disjunctive: Homelessness Code of Guidance Annex 12 para 19. In Moreno v Hackney LBC (2009) Legal Action Nov 2009 p.25, the Council found M to be ineligible because he did not come within reg. 6(2)(b) but failed to consider reg. 6(2)(a). 22

24 Social Security Commissioner s decision [2009] UKUT 35 (AAC) 68. The claimant came to the UK in January He then had periods when he worked, periods when he claimed jobseeker s allowance, and also gaps between these periods. Ultimately in February 2007 he claimed income support because he had become unable to work due to illness. This claim was disallowed as it was said that the claimant did not have a right to reside in the UK and this decision was the subject of the appeal. 69. Whether the claimant had a right to reside when he claimed IS depended upon whether he was a worker for the periods when he worked and whether he retained that status during the periods that he did not. The Commissioner stated that there needed to be a methodical and chronological approach to the claimant s residence status at different times. The case was remitted to another tribunal for this exercise to be undertaken. 70. In analysing a claimant s status, the following points can be extracted from this decision and other cases: Two weeks work as a steward at the Wimbledon Tennis Championships was real and genuine, and of economic value, and could not be regarded as merely marginal or ancillary. The fact that the duration of the employment was short was not conclusive. The claimant was to be regarded as a worker in respect of that employment: Barry v Southwark L.B.C. [2008] EWCA Civ 1440; Commissioner Mesher accepted five weeks work (as an au pair) as genuine and effective in R(IS) 12/98; A gap between becoming involuntarily unemployed and claiming JSA is not necessarily fatal. In terms of EC analysis, the question is whether the gap shows that the claimant has withdrawn from the labour market: [2009] UKUT 11 (AAC) para 15; 23

25 Worker status can survive when someone who was seeking work became unable to work: [2009] UKUT 11 (AAC) para 23; A person can move from one head of reg 6(2) to another: [2009] UKUT 35 para 47. HOMELESS 16 & 17 YEAR OLDS: AUTHORITIES DUTIES AND OBLIGATIONS UNDER PART VII AND UNDER THE CHILDREN ACT The Homelessness (Priority Need for Accommodation) Order 2002 provides that one of the classes of priority need includes: A person aged 16 or 17 who is not either a relevant child 16 ; or a child in need to whom a local authority owes a duty to provide accommodation under section 20 of the Children Act Section 20(1) of the Children Act provides: (1) Every local authority shall provide accommodation for any child in need 18 within their area who appears to them to require accommodation as a result of (a) (b) there being no person who has parental responsibility for him his being lost or having been abandoned; or 16 i.e children who have previously been looked after by a local authority see s23a Children Act Paras 2(2) and (2) Homelessness (Priority Need for Accommodation) Order As defined in s17 Children Act

26 (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. 73. Section 20(3) of the Children Act provides: (3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation. 74. There is also a power, in s 20(4), for an authority to provide accommodation for any child if they consider that to do so would safeguard or promote the child's welfare. 75. Section 22(2) CA 1989 defines accommodation as accommodation which is provided for a continuous period of more than 24 hours. 76. Once a child is accommodated under s 20, s/he becomes a 'looked after' child 19, towards whom the authority has additional duties, such as: (a) (b) (c) (d) to safeguard and promote the child s welfare (s 22(3)(a)); to maintain the child in other respects apart from the provision of accommodation (s 23(1)(b)); to ascertain the children s wishes and feelings, the wishes and feelings of their parents, and of those persons with parental responsibility, and any other person whose wishes and feelings the authority considers to be relevant, and give consideration to those wishes and feelings (s 22(4), (5)); to advise, assist, and befriend the children with a view to promoting their welfare when they cease to be provided with accommodation (s 24(1)); 77. Further, once such children cease to be looked after by the authority having been looked after for at least 13 weeks, they become (until the age 19 As defined in s22(1) CA

27 of 18) relevant children towards whom further duties are owed 20 (including duties to appoint a personal adviser to the child, provide him/her with a pathway plan, etc). These duties may extend to former relevant children 21 up to the age of 21 or even 24 if the young person is pursuing a planned course of education and training. R (on the application of G) v London Borough of Southwark [2009] UKHL May The issue in this case, as summarised by Baroness Hale, was as follows: If a child of 16 or 17 who has been thrown out of the family home presents himself to a local children s services authority and asks to be accommodated by them under section 20 of the Children Act 1989, is it open to the authority instead to arrange for him to be accommodated by the local housing authority under the homelessness provisions of Part VII of the Housing Act 1996? G was a Somali national who came to the UK with his mother and siblings. In 2005 he was granted indefinite leave to remain. He was excluded from home at age 17. The Council arranged mediation with his mother, but this proved unsuccessful. He spent some time `sofa surfing and sleeping in cars. 80. G s solicitors sent him to the children s services department, with a letter requesting an urgent assessment of his needs and immediate accommodation under s.20 of the Children Act G was placed in temporary accommodation. The initial assessment concluded that accommodation provided by Southwark Homeless Persons Unit will be sufficient at this time to work on addressing the social, emotional and practical issues identified in this assessment. The council then wrote to G s solicitors further, as follows: Our client department has fully considered your client s needs and reached the decision that section 20 is not appropriate as [G] has no identified need 20 See ss 23A, 23B and 23C CA See s23c 22 Para 3 of the judgment 26

28 for social services support, and his needs can be satisfactorily met through provision of housing and referrals to other support agencies Our client department has fulfilled its duty to assess your client and reached the decision that he is not in need of section 20 accommodation; he simply requires `help with accommodation. 81. G applied for judicial review. His application failed in the Administrative Court, and (by a 2:1 majority) in the Court of Appeal. G then appealed to the House of Lords. 82. The council argued that in deciding whether a child required accommodation under s20(1) CA 1989, the authority should be entitled to take into account the other sources of accommodation which might be available to the child, and conclude that he did not require social services accommodation at all, but only help to find or acquire that other accommodation, under the authority's general duty to provide services under s17. This could be done via the homeless persons unit, if necessary. 83. Baroness Hale gave the only judgment. She began by referring to the earlier, similar case of R (M) v Hammersmith and Fulham LBC [2008] 1 WLR 536 which considered what ought to have happened in the reverse situation, where a child had approached the housing authority and asked them to accommodate her. The HL had previously made it clear that the child should have been referred to the children's authority for assessment. 23 Baroness Hale referred to para 4 of the judgment in which it had been said: the clear intention of the legislation is that these children need more than a roof over their heads and that local children's services authorities cannot avoid their responsibilities towards this challenging age group by passing them over to the local housing authorities. 84. She also stated that it was clear from recent caselaw 24 that authorities could not claim, when providing accommodation to children, to have been providing it pursuant to their general duty to promote the welfare of 23 See R (M) v Hammersmith & Fulham LBC [2008] UKHL 14 [2008] 1 WLR See para 9 judgment 27

29 children in need under s17 CA 1989 (which would mean that the duties towards looked after children would not be triggered). 85. She pointed out that s20(1) entails a series of judgments, set out by Ward LJ in R (A) v Croydon London Borough Council [2009] LGR 24, para 75, as follows: a. Is the applicant a child? b. Is the applicant a child in need? c. Is he within the local authority s area? d. Does he appear to the authority to require accommodation? e. Is that need the result of one of the three situations described in s.20(1)? f. What are the child s wishes and feelings regarding the provision of accommodation for him under section 20? A homeless 16 or 17 year old who did not want to be accommodated under section 20 would be an example of a child in priority need under the 2002 Order. Alternatively, an unaccompanied asylum seeking child who refused to be accommodated under section 20 and did not want to be looked after by children s services could be given help and support under section 17. g. What consideration (having regard to the child s age and understanding) is to be given to those wishes and feelings? 86. It followed that every item in the above list had been assessed in G s favour. The section 20 duty had therefore arisen and the authority were not entitled to side- step that duty by giving the accommodation a different label. The 2002 Order takes out of priority need those children who require accommodation in the circumstances set out in section 20(1) They cannot in the same breath be put back into priority need by adjudging that they do not require accommodation at all when clearly they do Para 26 28

30 87. In relation to criteria (2) on the list (assessment of need), she commented: This will often require careful assessment..it is, perhaps, possible to envisage circumstances in which a 16- or 17- year- old who is temporarily without accommodation is nevertheless not in need..perhaps a child whose home has been temporarily damaged by fire or flood who can well afford hotel accommodation while it is repaired. But it cannot seriously be suggested that a child excluded from home who is sofa surfing in this way, more often sleeping in cars, snatching showers and washing his clothes when he can, is not in need. 88. The House therefore found that G had been accommodated under section 20 and that he subsequently became a former relevant child entitled to the `leaving care duties under section 23C(1) of the Children Act Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation DCLG / Department for Children, Schools and Families April This guidance seeks to assist housing authorities and children s services authorities in their dealings with homeless persons aged 16 or 17 in the light of the decision in R (G) v LB Southwark. The guidance supersedes those parts of circular LAC (2003) 13 (Guidance on accommodating children in need and their families) that relate to how lone 16 and 17 year olds should be accommodated under the Children Act. 90. The guidance states that if the young person makes an approach to housing services, the authority should, if appropriate, provide interim accommodation under s.188 of the Housing Act He or she should then be referred to children s services for an assessment of his/her needs under the Children Act Bed and breakfast accommodation is not suitable for young persons, even as interim accommodation. The accommodation should be provided until the children s services authority have assessed whether a duty is owed under s.20 of the Children Act. Such an assessment should be carried out as soon as possible and no later than 10 days after being notified by the housing authority. 29