Holmes-Moorhouse v Richmond upon Thames London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOORE-BICK,LORD JUSTICE LAWS,Lord Justice Moore-Bick,Lord Justice Moses,Lord Justice Rix,Lord Justice Auld |
| Judgment Date | 10 October 2007 |
| Neutral Citation | [2007] EWCA Civ 970,[2007] EWCA Civ 82 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2006/2442,B2/2006/2442 |
| Date | 10 October 2007 |
[2007] EWCA Civ 82
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE OPPENHEIMER)
Royal Courts of Justice
Strand London, WC2
Lord Justice Laws
Lord Justice Moore-Bick
B2/2006/2442
MR N NICOL (instructed by Messrs Nicholas Nicol) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
This is an application by Mr Holmes-Moorhouse for permission to make a second appeal challenging a decision of the respondent council to the effect that he was not in priority need of housing within the meaning of the Housing Act 1996. Because this is an application for permission to make a second appeal, the appellant must satisfy the court that his appeal raises an important point of principle or practice or that there is a compelling reason for the matter to be heard by this court.
For some time prior to the breakdown of their relationship in 2005 the appellant lived with a Ms Dembinska and their four children at the family home in Richmond. That was a council property rented in the sole name of Ms Dembinska. On 9 August 2005 HHJ Knowles, sitting in the Wandsworth County Court, made an order directing the appellant to leave the property and not return except on occasions necessary to the collection and return of the children. The judge granted Mr Holmes-Moorhouse shared residence of the three children under sixteen and directed that they should spend alternate weeks and half of each school holiday with each parent. Having thus been deprived of his previous living accommodation, on 15 August the appellant applied to the council for housing under the Housing Act 1996. On 16 August the council acknowledged his application but drew attention to the fact that there was a severe shortage of Housing Association accommodation in the borough and that it could only assist those applicants most in need.
In September 2005 the appellant moved out of the house pursuant to the order and went to live in bed and breakfast accommodation. In February 2006 the council assessed his position. It accepted that he was homeless and eligible for assistance but decided that he did not have a priority need. The officials who made that determination took into account the fact that he had joint residence of the children, but they also had regard to the Code of Guidance which stated that a joint residence order may not automatically lead to the conclusion that it would be reasonable for the children to reside with the parent making the application.
At the time in question the children were still living with Ms Dembinska at the former home and the officials considered that their various needs were being met. They had contact with the appellant weekly. In those circumstances, the council did not consider that the children could reasonably be expected to reside with the appellant and that its decision did not prevent him from maintaining his relationship with them.
That decision led to an application for a review, which was carried out by Mr Brian Castle, the Joint Assistant Director, Housing. He issued a decision on 3 May 2006 in which he noted that the appellant did not contribute financially to the support of the children who usually resided with their mother. He expressed himself satisfied that the children did not reside with the appellant, nor could they be expected to do so, and on that basis he affirmed the decision that the appellant did not have a priority need for housing.
The appellant appealed against that decision to the County Court on the grounds that since he had a residence order in respect of the children, one of whom suffered from a disability, he needed somewhere to live which would accommodate the children as well as himself. He relied on Section 189 1(b) of the Housing Act 1996 which provides:
“(1) The following have a priority need for accommodation
…
(b) a person with whom dependent children reside or might reasonably be expected to reside.”
The appeal was heard by HHJ Michael Oppenheimer sitting in the Brentford County Court. He held that whether or not a shared residence order is exceptional, a local authority is entitled to take into account the extent of its resources and in particular the fact that in a case of shared residence it might have to find two houses, one for each parent, when deciding whether the homeless parent fell within the terms of the section. He did not think that could be right and expressed the view that if it were the case the system would be open to abuse. Accordingly, he dismissed the appeal.
The main ground of appeal is that the council was wrong to decide that the appellant did not have a priority need, given the fact that an order of the court not only gave him shared residence of the children but specifically directed that they spend alternate weeks and half of all school holidays with him. That, he argues, means that the children are to live with him during alternate weeks and that in turn makes it necessary for him to have a house in which to accommodate them.
When refusing permission to appeal on paper Longmore LJ expressed the view that it cannot be right that when two people separate they should both be provided with family accommodation just because a court has made a shared residence order. However, the statutory test is simply whether the applicant is:
“a person with whom dependent children might reasonably be expected to reside.”
It is certainly arguable in my view that if the criteria are satisfied it does not matter how that situation came about. At present the children do not reside with the appellant because he has no accommodation for them, but to say that he is therefore not a person with whom they can reasonably be expected to reside might be thought to beg the question whether he should be in a position to provide such accommodation and to ignore the court's order in relation to their residence.
In my view this case raises an important question of law and one in relation to which an appeal has some prospect of success. I would therefore grant permission to appeal.
I agree that permission should be granted for the reasons given by my Lord, Lord Justice Moore-Bick.
Order: Application granted.
[2007] EWCA Civ 970
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
His Honour Judge Michael Oppenheimer
6BF02935
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Auld
Lord Justice Rix and
Lord Justice Moses
Case No: B5/2006/2442
Mr Nicholas Nicol (instructed by Messrs Scully & Co) for the Appellant
Mr A Arden QC and Mr Matthew Hutchings (instructed by London Borough of Richmond-Upon-Thames) for the Respondent
Hearing date: 11 th July 2007
Judgement
Introduction:
If a family court makes a shared residence order, settling arrangements whereby children will live with their parents in two different homes, a local housing authority may be faced with an obligation to provide two sets of accommodation for one family. The statutory obligation of a family court to consider the children's' welfare as paramount may conflict with a local housing authority's duty to satisfy itself of priority need for a scarce resource.
In this appeal the conflict is stark. A family court has made a shared residence order, by consent, without any consideration of the impact on the local housing authority. The local authority protests at the father's application to be housed in a way which will accommodate his children, who will live with him on alternate weeks, in consequence of an order, obtained by consent, without any opportunity for the authority to be heard. The judge upheld its refusal to recognise the father's asserted priority need, under s.189(1)(b) of the Housing Act 1996. The father appeals.
Background
Before August 2005 the appellant lived with his partner and their four children, aged between 17 and 7, in council property in Richmond. The appellant's partner is the sole tenant. The youngest child suffers from a disability.
On 9 August 2005, H.H. Judge Knowles, at Wandsworth County Court, ordered, by consent, that the appellant leave the home by 20 September 2005 and that he and his partner should have shared residence with the three younger children. She ordered that they should spend alternate weeks with the appellant and his partner and half of each school holiday. I re-iterate that this order, as was accepted, although it does not appear to that effect on its face, was by consent. A review was ordered on a date after 20 November 2005.
On 15 August 2005 the appellant applied to the London Borough of Richmond-upon-Thames, the respondent, (Richmond) for assistance as a homeless person under Part VII of the Housing Act 1996 (The Housing Act).
By letter dated 24 February 2006 Richmond notified the appellant of its decision. It accepted that he was homeless and eligible for assistance but took the view that he was not in priority need, neither on the medical grounds he had asserted nor in respect of his children. It is necessary to record the material terms of that letter. The letter recorded the court order and added:—
“I am...
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