Court of Appeal rejects claim for “former relevant child” status

The Court of Appeal has ruled against granting a judicial review of Essex County Council over whether a teenager who might have become homeless was entitled to ‘former relevant child’ status.

Lord Justice Underhill said in his judgment that appellant DF had a chaotic childhood and from May 2021 lived in a council flat provided by an Arm's Length Management Organisation (ALMO), with her boyfriend, her mother and later her mother’s fiancé.

DF’s mother died unexpectedly of a drug overdose in August 2022, when DF was eight and half months short of her 18th birthday.

She had no parental supervision, and was not in education, employment or training, though had some social work support.

The ALMO initially said she had no succession right in the flat, where DF wished to remain with her boyfriend and her late mother’s cats.

The landlord served notice to quit in December 2022, but took no action to evict when the notice expired a month later.

In February 2023 it granted DR a tenancy of suitable alternative accommodation when she turned 18 and undertook not to evict her in the meantime. She now lives in the accommodation concerned.

But before she was offered this, Coram Children’s Legal Centre had sent the council a pre-action protocol challenging a failure to accommodate DF contrary to its statutory duties under sections 17 and 20 of the Children Act 1989.

The council’s legal department replied there was no need for DF to leave her late mother’s flat because her occupation would only become unlawful if the ALMO obtained and enforced an eviction order process likely to take a year.

DF issued proceedings in April 2023 by which time she was 18 and living in her new accommodation.

She now claimed she should be treated by Essex as a ‘former relevant child’ within the meaning of section 23C of the Children Act 1989.

This status obliges a local authority to continue support to young people who have been in local authority care and/or accommodation after they turn 18.

DF argued she was a ‘former relevant child’ because in the period between the expiry of the notice to quit and her 18th birthday she required accommodation within the meaning of section 20, which should have been provided by the council.

Had she been given such accommodation she would have been a former relevant child when she turned 18.

Underhill LJ said Essex argued DF did not require accommodation in the period prior to her 18th birthday because she was able to live in her late mother’s flat.

DF said the phrase ‘requires accommodation’ in section 20 of the 1989 Act must as a matter of law be construed in the same way as the definition of homelessness in section 175 of the 1996 Act.

Under that, a person is homeless if there is no accommodation they have a legal right to occupy, and she had had no such right to her mother’s flat; only that the landlord had agreed not to evict.

Alternatively, the council was wrong in law to conclude that she did not require accommodation within the meaning of section 20.

Underhill LJ said there was a statutory duty of co-operation between local housing authorities and social services departments but that did not a mean the section 20 and section 193 duties were co-extensive in their application to children.

He said: “In summary, therefore, while both the case-law and the Guidance could be said to demonstrate that the regimes under the 1989 Act and Part 7 of the 1996 Act should in one sense ‘march hand-in-hand’ in the case of children, that is only in the sense that in a given case either duty might in principle be engaged and the relevant authorities will need to co-operate to identify which applies.

“They certainly do not demonstrate that the circumstances giving rise to the two duties are identical: in fact they appear clearly to recognise that they are not.”

Rejecting the first ground he said: “I readily accept that in many cases where a child is homeless within the meaning of section 175 they will also require accommodation within the meaning of section 20: in fact, as already noted, I would expect that to be so in the great majority of cases. But, like the [High Court] judge, I do not accept that it will always and necessarily be so.”

He rejected the second ground, on departure from statutory guidance, noting: “I am far from sure…the Guidance is intended to cover circumstances such as those of the claimant’s case, where there is no reason to believe that the council ever thought that she required accommodation.

“And, even if there was a departure from the Guidance, I am not convinced that the claimant should be entitled to substantive relief in circumstances where there were, as the judge found, good reasons for such a departure.”

Underhill LJ also dismissed an argument that DF had been required to trespass in her mother’s flat.

He said: “The only relevance of the fact that the claimant was a trespasser to the question of whether she required accommodation was that a trespasser’s occupation is potentially precarious: since she had no legal right to occupy, [the ALMO] could in principle bring proceedings for her eviction at any time.

“It is the risk of eviction, not the status of trespasser, that is relevant to whether she required accommodation: her occupation would have been equally precarious if she had a bare licence and there was reason to believe that [the ALMO] would terminate the licence and evict her.

“However, throughout the period the council believed, with – so the judge found – good reason, that the claimant’s occupation was not in fact precarious, whatever her legal status.”

On the fourth ground, concerning unreasonableness, Underhill LJ said: “I can see nothing wrong in the judge’s conclusion that it was reasonable to take the view at that stage that she did not require accommodation, even if the only criterion were precariousness. It was reasonable at least to wait and see whether [the ALMO] did in fact decide to bring proceedings – which it never did.”

The judge went on to conclude: “I would dismiss this appeal. I believe that the judge was right to uphold the reasonableness of the council’s decision in what were an unusual set of circumstances which are unlikely to be typical of the kinds of case in which the issue of whether a child requires accommodation under section 20 arises.

“It is of course a pity that the fact that the claimant did not receive section 20 accommodation means that she is not entitled to the kind of support which she could expect as a former relevant child, which I am sure would be of real value to her. But that is the result of the way Parliament has chosen to structure the relevant legislation, which inevitably leads to some arbitrary distinctions…”

Lord Justice Bean and Lady Justice King both agreed.

Mark Smulian