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Households with dependent children

This content applies to England

An explanation of the regulations regarding households with dependent children qualifying as priority need.

Overview

A person is in priority need if s/he has one or more dependent children living with her/him or who might reasonably be expected to live with her/him.

The test involves asking two questions:

  • is the child dependent (at least to some extent) upon the applicant?
  • does the child reside with (as opposed to merely visit) the applicant, or could s/he reasonably be expected to do so?

If the answer to either question is no, then the applicant is not in priority need. If the answer is yes to both questions, then the applicant must be accepted as in priority need.

If the children do not normally live with the applicant at all, then it is open to the authority to decide whether it is reasonable for the children to reside with the applicant.[1] The two tests should not be confused. For more information on split families, see the section Defining homelessness.

Applying the wrong test would give grounds for challenging the decision on a point of law. For more information see the section Challenging homelessness decisions.

Whether children are dependent on the applicant

The Housing Act 1996 does not define dependent children. The Homelessness Code of Guidance states that dependent children do not have to be the children of the applicant, but could be related to the applicant or her/his partner or be adopted or foster children.[2]

The Code suggests that all children under the age of 16 should be treated as dependent, as well as those aged 16 to 18 who are either receiving or about to receive full-time education or training or who are otherwise unable to support themselves and who live at home. The Code also suggests that the child must be dependent on the applicant, although not necessarily wholly or exclusively.[3]

There is an argument that a child who is dependent on someone else entirely could none the less confer priority need on an applicant as long as the child lives with, or could reasonably be expected to live with the applicant. The argument requires earlier case law[4] to be disapplied on the basis of technicalities around statutory construction, and has not been tested in court.

The courts have held that 16 to 18 year olds who are on a youth training scheme and receive a training allowance are not considered to be dependent. However, 16 to 17 year olds could be dependent on the applicant in non-financial ways, which would bring the applicant into priority need.[5] The Code clarifies this by stating that dependency is not limited to financial dependency, since some children who are in employment may not be sufficiently mature to live independently of their parents and there may therefore be good reasons for considering them to be dependent.[6]

The courts have also held that:

  • a married 17 year old in full-time education and dependent upon her husband could not be considered a dependent child. There must be some form of parent/child relationship[7]
  • the Code's reference to 16 to 18 year olds includes those aged 18[8]
  • dependent children are not considered to be in priority need in their own right[9]. It is the parent or carer who is in priority need and to whom the offer of accommodation must be made.

Whether children are resident with applicant

If children are in the care of social services and not currently living with either parent, the Code of Guidance states that it is essential that the local authority liaises with social services.[10] This should help to establish the nature and degree of the children's dependency.

Case law has also indicated that an applicant may be in priority need when her/his children are staying temporarily with other relatives or remain in care or foster care only because of the family's housing problems.[11]

Separated parents

For an applicant to be in priority need, the Code of Guidance states that the children/child must actually be residing with the applicant with some degree of permanence or regularity, or there must be a reasonable expectation of this happening. Where the children are merely staying with the applicant for a limited period, the arrangement will be considered to be temporary and the applicant will not be in priority need.[12] It is only in exceptional circumstances that it would be reasonable to expect children who reside with one parent to be provided with another home through Part 7 so that they could also reside with the other parent. [13] However, the Code of Guidance does remind local authorities that where parents are separated, it will often be in the best interests of the children to maintain a relationship with both parents.[14] Each case must be considered individually.

If children are not currently residing with the applicant, it is open to the authority to decide whether it is reasonable for them to do so, regardless of any agreement made between the parents or of any terms of a residence order. The terms of a residence order, whether or not made with the consent of both parents, does not determine the question of whether the applicant is in priority need, instead they form part of the material the local authority should consider before coming to its decision.[15] Furthermore, the local authority can take into account the scarcity of housing when coming to its decision, although this is not to be taken to mean that it can refuse to discharge any duty it owes because of a lack of resources. [16]

Some local authorities may not recognise an applicant as being in priority need, even if the children live with her/him, unless s/he has a residence order in her/his favour. This practice has been condemned by the courts.[17] It may be important to distinguish between staying with a parent under a contact order and residing with a parent following a residence order.[18]

Other points relating to priority need which have been confirmed by the courts include:

  • the children do not need to be living with the applicant on a full-time basis to be dependent[19]
  • the test is not one of comparison between the two parents or carers as to which has primary care[20]
  • the children's residence with the applicant in temporary accommodation provided under section 188 is relevant and should be taken into account when deciding whether the children reside with her/him and confer priority need status.[21]

Persons subject to immigration control

Where the applicant is a person subject to immigration control who is eligible for assistance under Part 7 of the Housing Act 1996 (for example a person granted refugee status or indefinite leave to remain or humanitarian protection),[22] any dependant who is a person from abroad who is ineligible for assistance will be disregarded in determining whether the applicant has priority need.[23]

It is not unlawful discrimination within the meaning of Article 14 of the European Convention on Human Rights (ECHR) to treat an applicant who is a British citizen, a Commonwealth citizen with a right of abode in the UK or an EEA national with a right to reside in the UK differently in regard to determining priority need when they have a child who is a person from abroad who is ineligible for assistance (see 'Restricted cases' below).[24]

Restricted cases

Prior to 2 March 2009, no applicant could be found to be in priority need by virtue of a child who was a person from abroad who was ineligible for assistance. This provision was held to be incompatible with Article 14 of the ECHR.[25] The Housing Act 1996 was amended so that the provision no longer applies to applicants who are not subject to immigration control. A British citizen, a Commonwealth citizen with a right of abode in the UK or an EEA national with a right to reside in the UK can be in priority need (or homeless) as a result of an ineligible household member.[26] The ineligible household member is referred to as a 'restricted person', and there are specific rules regarding discharge of the homeless duty in such 'restricted cases'. See Ending main housing duty for further information.

A 'restricted person' is a person:[27]

  • who is not eligible for assistance under Part VII Housing Act 1996
  • who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996

    and

  • either:

    • does not have leave to enter or remain in the UK, or
    • whose leave to enter or remain in the UK is subject to a condition to maintain and accommodate himself, and any dependants, without recourse to public funds.

Applications made before 3 April 2018

The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.

[1] R v Oxford CC, ex p Doyle (1998) 30 HLR 506, QBD.

[2] para 8.8 Homelessness Code of Guidance, MHCLG, Feb 2018.

[3] paras 8.6 and 8.7 Homelessness Code of Guidance, MHCLG, Feb 2018

[4] R v Westminster CC, ex p Bishop (1996) 29 HLR 546, QBD.

[5] R v Kensington and Chelsea RBC, ex p Amarfio (1995) 27 HLR 543, CA.

[6] para 8.7 Homelessness Code of Guidance, MHCLG, Feb 2018

[7] Hackney LBC v Ekinci [2001] EWCA Civ 776, (2002) HLR 2, CA; para 10.8 Homelessness Code of Guidance, July 2006.

[8] Miah v Newham LBC [2001] Legal Action, June, CA.

[9] R v Oldham MBC, ex p G; R v Bexley LBC ex p B [1993]; R v Tower Hamlets MBC ex p Begum (1993) 25 HLR 319, HL.

[10] para 8.12 Homelessness Code of Guidance, MHCLG, Feb 2018

[11] Crawley BC v B (2000) 32 HLR 636, CA.

[12] para 8.6 Homelessness Code of Guidance, MHCLG, Feb 2018

[13] Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7.

[14] para 8.10 and 8.11 Homelessness Code of Guidance, MHCLG, Feb 2018

[15] Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7; Oxford CC v Bull [2011] EWCA Civ 609; R v Oxford CC, ex p Doyle (1998) 30 HLR 506, QBD; para 8.11 Homelessness Code of Guidance, MHCLG, Feb 2018

[16] Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7; Oxford CC v Bull [2011] EWCA Civ 609.

[17] R v Ealing LBC, ex p Sidhu (1982) 2 HLR 45, QBD.

[18] Both types of orders can be made under s.8 Children Act 1989.

[19] R v Lambeth LBC, ex p Vagliviello (1990) 22 HLR 392, CA; R v Kingswood BC, ex p Smith-Morse [1994] 2 FLR 137, QBD.

[20] R v Leeds CC, ex p Collier [1998] Legal Action 6/98, QBD.

[21] Oxford CC v Bull [2011] EWCA Civ 609.

[22] reg 5 Allocation of Housing and Homelessness (Eligibility)(England) Regulations 2006 SI 2006/1294.

[23] s.185(4) Housing Act 1996 as amended by s.314 and Sch.15 Housing and Regeneration Act 2008; Housing and Regeneration Act 2008 (Commencement No. 1 and Saving Provisions) Order 2009 SI 2009/415 (C.28).

[24] Bah v UK [2011] EHRC 1448, App no. 56328/07.

[25] R v Westminster CC, ex p Morris; R v Lambeth LBC ex p Badu [2005] EWCA Civ 1184.

[26] s.185(4) Housing Act 1996 as amended by s.314 and Sch.15 Housing and Regeneration Act 2008; Housing and Regeneration Act 2008 (Commencement No. 1 and Saving Provisions) Order 2009 SI 2009/415 (C.28).

[27] s.184(7) Housing Act 1996 as amended by s.314 and Sch.15 Housing and Regeneration Act 2008; Housing and Regeneration Act 2008 (Commencement No. 1 and Saving Provisions) Order 2009 SI 2009/415 (C.28).

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