The interaction between housing and social care duties
Members of the Cornerstone Barristers Housing Team set out key takeaways from three important decisions from the Court of Appeal clarifying the interaction between local authorities’ obligations under the Housing Act 1996 and social care legislation.
R (Campbell) v Ealing London Borough Council [2024] EWCA Civ 540; [2024] PTSR 2063
The issues in the appeal: The appeal concerned whether the respondent local authority’s decision to withdraw its funding of Mr Campbell’s (the appellant) temporary bed and breakfast accommodation had been unlawful in light of ongoing obligations it owed to him under the Care Act 2014. The decision addressed the interaction between a local authority’s obligations under the Care Act 2014 and under the Housing Act 1996, and in particular, the effect of section 23 of the 2014 Act [1]-[2].
Summary of the facts: Mr Campbell was placed in temporary accommodation in the respondent local authority’s area by another London local authority discharging its homelessness duties towards him under Part VII of the Housing Act 1996 [4]. The respondent local authority took over the funding of Mr Campbell’s accommodation, purportedly by exercising its statutory power under section 19(3) of the Care Act 2014, while it undertook a needs assessment. Mr Campbell who reported to have depression, obsessive-compulsive disorder and a progressive condition causing loss of vision, was subsequently assessed to have eligible needs for care and support. Managed care arrangements were offered by the local authority but declined by Mr Campbell because his needs were being met by his partner and family members [3]-[5].
For the next six years, Mr Campbell continued to live in “temporary accommodation” funded by the respondent local authority. Several reviews of his care and support needs were undertaken throughout this period, all of which consistently concluded that he had eligible needs. Mr Campbell continued to decline offers to provide managed care or direct payments by the local authority in light of the fact that he considered his needs to be adequately met by his partner and family members. The primary concern raised by Mr Campbell during these assessments was the unsuitability of his current accommodation [7]-[8].
Following pre-action correspondence, Mr Campbell brought a claim against the local authority for breach of the Equality Act 2010, alleging that he had been treated in a directly and indirectly discriminatory manner as a result of which he had spent several years living in accommodation which was not suitable for his needs as a disabled person [10].
The local authority then issued Mr Campbell with a decision letter informing him that its adult social services department would cease funding his temporary accommodation. The letter indicated that social services had been funding his accommodation for more than five years on the understanding that he would bid, through the local authority’s council housing allocation scheme, for properties for which he was eligible. The letter detailed the forms of assistance which had been offered to him by social services to help resolve his housing issues, which, it was said, he had not made use of. These included offers of support to make a homelessness application, to bid for council properties on the housing register, or to seek accommodation in the private rental sector which could be funded through housing benefits [11]-[14].
Mr Campbell challenged the local authority’s decision by way of Judicial Review and the separate proceedings under the Equality Act were stayed [10], [15].
It was the local authority’s evidence that Mr Campbell, who was placed in a priority band on the local authority’s social housing register had received and rejected several direct offers of alternative accommodation [39].
During the course of the proceedings, Mr Campbell accepted a social housing tenancy. He was therefore living in permanent accommodation which he felt was suitable for his needs by the time of the hearing in the Court of Appeal. Irrespective of whether or not the appeal was therefore academic, the Court indicated at the outset of the hearing that the wider importance of the issue of statutory interpretation it raised justified Mr Campbell’s appeal being heard [39]-[41].
The decision: The Court of Appeal (Bean LJ, with whom Males LJ and Dingemans LJ agreed) dismissed the appeal.
Part VI of the Housing Act 1996 deals with the allocation of housing accommodation by local authorities. It requires housing authorities to devise a scheme for allocating its social housing stock which gives reasonable preference to, among others, “people who need to move on medical or welfare grounds (including on any grounds related to disability)” (section 166A) and to comply with that scheme when allocating housing (section 159) [28]. The Court accepted (Bean LJ at [59] and Males LJ at [69]) that the circumstances would be rare, if not unprecedented, in which it could be said that a local authority was “required” to provide a particular individual with accommodation under Part VI of the Act.
Part VII of the 1996 Act imposes duties on local authorities in respect of those who are homeless or threatened with homelessness. The definition of homelessness for the purposes of this Part under section 175 includes people who have accommodation, but where that accommodation is such that it would not be reasonable for them to continue to occupy it. There is an interim duty which arises in cases of apparent priority need (section 188), and persons who have a priority need are defined to include “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability” (section 189) [29]-[30].
The critical provision for the purposes of the appeal was section 23 of the Care Act 2014, headed “Exception for provision of housing etc”. This states that: “(1) A local authority may not meet needs under sections 18 to 20 [of the Care Act 2014] by doing anything which it or another local authority is required to do under– (a) the Housing Act 1996…” [27].
The Court held that this provision, on its natural meaning lays down that where a local authority is required to either (i) offer housing accommodation to someone in accordance with its allocation scheme under Part VI of the Housing Act 1996, or (ii) make provision for an applicant who was homeless and was not excluded from eligibility under Part VII of that Act, then it cannot be required to provide “ordinary” accommodation under the Care Act 2014 [63].
In reaching this conclusion, the Court applied the decision in R (Idolo) v Bromley London Borough Council [2021] HLR 17 [58]. That decision referred to the Care Act’s explanatory notes which stated that section 23 “sets out the boundary in law between local authorities’ care and support functions, and their housing functions” before holding that “there is a clear intention in section 23 to give a measure of priority to the general scheme of the Housing Act over the specific scheme of the Care Act… (re)housing needs, even if identified through the Care Act route, cannot shortcut the detailed system of balanced priorities within the Housing Act schemes, but must find their proper place within those schemes”.
The Court held that the appellant’s submission would deprive section 23 of almost any meaning [59]. Acceding to the appellant’s arguments would risk turning social workers into housing officers. It would impose severe strains on adult social care budgets. Further, anomalous situations could be created in non-unitary local authority areas outside London where a county council is responsible for adult social care and a district council allocates housing. An individual could seek housing within the same area from both authorities under distinct statutory provisions [61]. The appellant’s arguments could also give rise to gaming of the system whereby a private tenant unsatisfied with his accommodation could become intentionally homeless and therefore ineligible for provision under Part VII of the Housing Act 1996 but seek alternative accommodation for a potentially indefinite period under the Care Act 2014 [62].
The judge below had been right to conclude that the respondent local authority had not been under a duty to house Mr Campbell under the Care Act 2014 and therefore it must follow that it did not act improperly or irrationally in taking the decision to cease funding the temporary accommodation [64].
R (DF) v Essex County Council [2024] EWCA Civ 1545
The issues in the appeal: The appeal concerned whether it had been unlawful for the respondent local authority to not have provided DF (the appellant) with accommodation under section 20 of the Children Act 1989 during a period of time when she was still 17 years old and “homeless” for the purposes of section 175 of the Housing Act 1996 [18]-[19].
Summary of the facts: DF, who had experienced a chaotic childhood, was living with her mother in a council property within the respondent local authority’s area when aged 17, her mother unexpectedly died of a drug overdose. DF continued to live in the flat without parental supervision, although she was supported by the local authority’s children’s services department and family and friends [2]-[3].
The tenancy for the flat, which was in DF’s mother’s name, was managed on behalf of Colchester Borough Council by a third party entity known as Colchester Borough Homes (“CBH”). It was determined that DF, who at this stage was still a child, had no succession rights under the tenancy. DF was served with a notice to quit the property expiring within one month. Following the expiry of this period, however, CBH did not initiate eviction proceedings and continued to engage with the respondent local authority’s children’s services department concerning DF’s circumstances [4]-[5].
DF’s allocated social worker explored alternative accommodation options with her over a number of months including the possibility of returning to live with her father or moving into accommodation which the local authority could provide to her under section 20 of the 1989 Act. DF was articulate and knew her own mind in these discussions – she wanted to remain in the flat, but if that was not possible, she wished to be able to live with her boyfriend and her cats [4], [52].
Exceptionally and out of concern for her welfare, CBH ultimately decided to grant DF a tenancy of suitable alternative accommodation for when she turned 18, and in the meantime, to take no steps to evict her from her mother’s property. DF accepted this offer and just a week after her 18th birthday, she moved into the alternative accommodation where she remained at the time of the appeal [6].
Prior to CBH’s offer, Coram Children’s Legal Centre sent the local authority a Pre-Action Protocol letter challenging “its failure … to accommodate [DF] and provide her with services, contrary to its duties under section 17 and section 20 of the Children Act 1989” [7].
Judicial Review proceedings were issued when DF was an adult and living in the property which had been offered to her by CBH under a secure tenancy. The outcome of her challenge and subsequent appeal remained relevant, however, as to whether she would be treated as a “former relevant child” for the purposes of section 23C of the 1989 Act, entitling her to a package of ongoing support from the local authority [8].
The decision: The Court of Appeal (the Vice-President, Underhill LJ, with whom Bean LJ and King LJ agreed) dismissed the appeal. The Court held that the starting point was to recognise that section 20 of the Children Act 1989 and Section 175 of the Housing Act 1996 are provisions of different statutes, which have different subject-matters – respectively, the welfare of children and homelessness – and unrelated legislative histories [21].
The duty under section 20 is triggered when “it appears to” the local authority that the child in question requires accommodation. That is the language of an evaluative judgment (a phrase used by Lady Hale in R (G) v London Borough of Southwark [2009] UKHL 26, [2009] 1 WLR 1299). The statute evidently intends decision-makers to apply the phrase “requires accommodation” in accordance with its natural meaning, subject to ascertaining and paying due regard to the child’s wishes (as required by subsection (6)) [22].
In contrast to the operation of the section 20 duty, the definition of “homeless” in section 175 of the 1996 Act depends primarily on the application of a precise formulation of whether the applicant has a legal right to occupy accommodation which is available to them. There are elements of evaluation in the section 175 test, including the question of whether it is reasonable to expect an applicant to occupy a given property, however, the exercise is structed in quite a different way from the section 20 test [22].
The question of whether a child “requires accommodation” for the purpose of section 20 is to be answered as a matter of factual evaluation, applying that phrase in its natural and common sense meaning and without reference to the definition of homelessness in section 175 of the 1996 Act [23].
While both case law and the relevant statutory guidance can be said to demonstrate that the regimes under the 1989 Act and Part VII of the 1996 Act should “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 [34].
In many cases, and perhaps in the great majority of cases, where a child is homeless within the meaning of section 175 of the 1996 Act they will also require accommodation within the meaning of section 20 of the 1989 Act – however that does not mean that this will always and necessarily be so [36].
Throughout the period under consideration, the evidence was that the respondent local authority believed that DF’s occupation of the flat was not in fact precarious, whatever her legal status (either as homeless or as a trespasser). The substantive question raised by the appeal was whether that belief and the local authority’s decision-making were reasonable [45]-[47].
On the evidence, as the judge below had found, there was no indication that CBH would proceed with eviction proceedings after serving the notice to quit on DF and that was clearly material in assessing the precariousness of her occupation. By that point DF was only three months away from turning 18, when the situation would have changed. There was nothing wrong with the judge’s conclusion that, in the unusual set of circumstances DF found herself in, she did not “require accommodation” within the meaning of section 20 of the 1989 Act. DF could only have received section 20 accommodation for a short period of time, prior to her 18th birthday, and she had made it clear to the local authority that she did not wish to move out of her home to anywhere where she could not be with her boyfriend and cats. The local authority was required by section 20(6) to have regard to her wishes and feelings [58]-[59].
It was, of course, a pity that the fact DF did not receive section 20 accommodation means that she is not entitled to the kind of support which she could expect to receive as a former relevant child, but that is the way Parliament has chosen to structure the relevant legislation which inevitably leads to some arbitrary distinctions. There was no suggestion of the local authority’s decision not to provide DF with section 20 accommodation being influenced by a wish to avoid having continuing obligations to her as a former relevant child [61].
R (TW) v Essex County Council [2025] EWCA Civ 4
The issues in the appeal: The appeal concerned whether the respondent local authority had acted irrationally in failing to determine that TW (the appellant), then aged 16, was a “child in need” within the meaning of section 17 of the Children Act 1989, such that accommodation which had been provided to him by the local authority should have been provided under section 20 of that Act [1]. If the accommodation had been provided under section 20, TW would now be a “former relevant child” within the meaning of section 23C of the Act, entitling him to ongoing support from the local authority.
Summary of the facts: The local authority had entered into a contract with a third party to provide support and accommodation for young people in its area, including by providing accommodation to 16- and 17-year-olds who were at risk of homelessness [11].
When TW was 14 years old, his mother had died, after which point he remained living with his stepfather. Aged 16, that relationship had broken down, resulting in TW staying at either his elder brother’s or his biological father’s home. Neither property contained a spare bedroom, so that in both properties, TW slept on a sofa. Following a referral to the local authority’s children’s services department, a social worker was assigned to carry out a child and family assessment [13].
That assessment concluded that TW was not a “child in need”. It referred to the support he was provided by his elder brother and father, while acknowledging that it was a concern that TW “did not have a stable place to live in the long term”. The assessment recommended that local authority early help services should offer to provide TW with support in securing suitable accommodation, including through a referral to the third party provider [14]-[17].
TW subsequently attended a meeting with the social worker and a member of the borough’s housing department to discuss his accommodation options. Although a factual dispute arose between the parties as to what information TW had been provided with at this meeting, a note submitted by the local authority in evidence recorded that the social worker had discussed different options available to TW, including being accommodated under section 20 of the 1989 Act, and that TW stated that he “does not want to be in care as there were too many rules” and wanted support instead to access housing through the third party provider [18].
TW then moved into property run by the third party and his case was closed to children’s services, although he continued to be supported by early help services. Shortly before his 18th birthday he was served with a notice to quit the property and moved out, returning to sleep on sofas at his father’s and various friends’ flats. Later that year, solicitors acting on his behalf sent a Pre-Action Protocol letter to the local authority, asserting that he was a “former relevant child” entitled to further support before ultimately issuing Judicial Review proceedings [19]-[20].
The decision: The Court of Appeal (Baker LJ, with whom Lewis LJ and Jeremy Baker LJ agreed) held – applying R (A) v Croydon LBC [2009] UKSC 8, [2009] 1 WLR 2557, and reflecting the relevant statutory guidance – that the question of whether a child is a “child in need” for the purposes of section 17 of the 1989 Act is a matter of professional judgment for the local authority. Any decision may be subject to challenge on the grounds that it is irrational, however, in accordance with the usual public law principles, the bar for establishing irrationality is set high [59]-[61].
On the facts of this particular case, TW’s circumstances might have led the local authority to conclude that he was a child in need, however, the conclusion that he was not, was one which the local authority had been entitled to reach on the basis of the careful analysis of the social work assessment. The decision was not an irrational one [62].
The local authority had been able to coordinate early help services to meet the concerns identified in the social work assessment, such that the evaluation that TW’s future needs could be meet without the provision of services under Part III of the 1989 Act was “entirely rational” [63]-[64].
The local authority had not, on the totality of the evidence including the clear terms of the social work assessment; the provision of early help services; the referral to the third party for the provision of accommodation, treated TW as having been a child in need and the judge below had been entitled to find the same. TW had not, at any point, been accommodated under section 20 of the 1989 Act and was not a former relevant child [67]-[68].
While this outcome was of course very unfortunate from TW’s point of view, there was no basis for thinking that the local authority had taken its decision to seek to avoid its responsibilities under Part III of the 1989 Act. The decision was reached rationally after a careful assessment and was plainly in line with national guidance [69]. The appeal was therefore dismissed [70].
Key takeaways
Being clear on which statute, for what purpose: Local authorities have adult social care functions, child welfare functions and housing/homelessness functions. These are each provided for by different statutory regimes, with unrelated legislative histories. It is to be remembered that in non-unitary authorities outside London, the authorities responsible for housing and social care may be different within the same area. In the case of a particular individual, duties might in principle be engaged under both housing and social care legislation. In these cases, different local authorities, or different departments within a unitary local authority will need to co-operate to identify which applies – and this may be expressly required by the relevant statutory guidance. This does not mean, however, that the distinct duties should be elided or that accommodation can be provided under one regime, when it should have provided been under another. Being clear on what the correct legal test is to apply will be important for determining an individual’s entitlement.
No requirement to provide “ordinary” accommodation under the Care Act 2014: Following Campbell v Ealing the position is clear – a local authority is not required to provide an individual with “ordinary” accommodation under the Care Act 2014 if that person is either on a social housing register awaiting allocation or is eligible for homelessness provision under the Housing Act 1996. The decision does not apply to specialist forms of accommodation in which care and support needs are met, for example, a care home.
Different tests determine whether a young person is homeless or requires accommodation: While a young person who is homeless within the terms of section 175 of the Housing Act 1996 is very likely to be either a “child in need” under section 17 of the Children Act 1989 or to “require accommodation” under section 20 of that Act, that will not necessarily be the case. Determining whether someone is homeless or in priority need for the purposes of the Housing Act 1996 often entails (although not exclusively) answering objective questions: for instance, does that person have accommodation available to them which they have a legal right to occupy? Conversely, answering the questions of whether a young person is a “child in need” or “requires accommodation” for the purposes of the Children Act 1989 involves making evaluative judgments. These questions will not have clear cut right or wrong answers. When determining whether a young person “requires accommodation” under section 20, it is also important to bear in mind that the young person’s own wishes and feelings must be taken into account, so far as it is reasonably practical to do so and consistent with their welfare.
Evidencing lawful decision-making: The cases of DF and TW confirm that deciding whether a young person is a “child in need” or “requires accommodation” for the purposes of the Children Act 1989 are matters for the local authority, subject only to challenges in the courts on usual public law principles. If potential duties arising under the legislation have been correctly identified and addressed by local authority decision-makers, then the bar is set for challenges on the grounds that decisions were “unreasonable” or “irrational”. In the cases of DF and TW, local authorities were able to evidence the lawfulness of decision-making through contemporaneous social work records and assessments, underlining the importance of such documentation for defending legal challenges.
