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Comment and Analysis Masthead

The right to rent and councils’ duties

Lexis Public Sector 146x219Alice Richardson discusses with LexisPSL Local Government the first reported case to consider the relevance of the ‘right to rent’ provisions in the Immigration Act 2014 to assessments under section 17 of the Children Act 1989 where parents claim to be destitute.

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Original news

R (on the application of U and another (by their litigation friend and mother, BU)) v Milton Keynes Council [2017] EWHC 3050 (Admin), [2018] All ER (D) 03 (Jan)

The defendant local authority’s failure to assess whether it had been possible, compatibly with the claimant children’s needs, for their mother to secure accommodation for the family in the light of the limitations in the Immigration Act 2014 (IA 2014), s 20, had rendered the continuing refusal to reassess unlawful. Accordingly, the Administrative Court allowed the claimants’ application for judicial review.

What is the significance of this case? Why is it important for practitioners?

The case is important for practitioners because it concerns the relevance of the ‘right to rent’ provisions in IA 2014 to assessments under Children Act 1989 (ChA 1989), s 17, where parents claim to be destitute. It is the first reported case to consider the issue.

The claim was a judicial review of the refusal of the local authority to carry out a reassessment of the children’s needs under ChA 1989, s 17 and to provide accommodation to them.

The authority had decided that the children were not ‘in need’ because, inter alia, their mother had sufficient funds to enable her to rent accommodation for the family. However, the authority had failed to take account of the fact that IA 2014 prevented the family from accessing the private rented sector.

How helpful is this judgment in clarifying the law in this area? Are there any remaining grey areas?

The case provides clarification in that authorities must consider the right to rent provisions when considering whether a child, in such circumstances, is in need for the purposes of ChA 1989.

The fact that a parent does not have the right to rent may not always result in a conclusion that the family are, in fact, destitute. While in this case Milton Keynes’ argument that the family could obtain hotel accommodation (which is not prohibited under IA 2014) was rejected, this was in part because it had formed no part of the authority’s decision at any time prior to the hearing.

What are the practical implications of the judgment? What should practitioners be mindful of when advising in this area?

When a parent (or guardian) claims to be destitute and there is a request for support under ChA 1989, s 17, practitioners must, firstly, determine whether the parent has the right to rent by virtue IA 2014, s 21.

If the parent does not have the right to rent, then the authority will need to take into account that the family are excluded from accessing private rented accommodation when determining whether the children are ‘in need’ for the purposes of ChA 1989. Practitioners should bear in mind that if the authority have not given consideration to the matter in reaching their decision then that decision will be susceptible to challenge on public law grounds.

The same considerations may apply when social services are asked to consider what, if any, duties they owe to vulnerable adults who claim to be destitute but who are ineligible for homelessness assistance.

What practical steps should local authorities take to consider the impact of the right to rent on requests to support children under ChA 1989, s 17 where parents claim to be destitute?

Local authorities will need to consider all the circumstances of the case which may include, as Milton Keynes sought to argue, consideration of any other types of accommodation which the family may have available.

However, authorities should bear in mind the comments of the judge as to whether occupation of hotel accommodation amounted to ‘occupying as a residence’. While it may be that the family’s occupation of a hotel would not start off as residential, it might acquire that character over time. Even if they could do so, a decision that the family could avoid destitution by short-term occupation of hotel accommodation, thereby having to move from one hotel to another in a series of short-term stays, would raise questions about the suitability of such an arrangement for the children and therefore whether it could properly be relied on as a way of avoiding them becoming children in need.

How does this case fit in with other developments in this area of the law? Do you have any predictions for future developments in this area?

The case highlights the importance of those working in, and with, social services being aware of relevant areas of housing law. The authority in this case had given no thought to whether the family could lawfully pay for accommodation which was suitable for the children, in the light of the provisions of IA 2014.

Further, the case should serve as a reminder to housing practitioners that, in addition to the duties placed on local authorities by Part 7 of the Housing Act 1996, social services departments may also owe duties to those facing homelessness.

Alice Richardson is a barrister at Trinity Chambers, Newcastle upon Tyne, and Arden Chambers, London.

The views expressed by Lexis' Legal Analysis interviewees are not necessarily those of the proprietor.

This article was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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