Priority need of homeless families with children

Priority need of homeless households with dependent children.

This content applies to England

Priority need of households with dependent children

A person is in priority need if they have one or more dependent children living with them or who might reasonably be expected to live with them.[1]

A local authority must consider whether the child:

  • is dependent on the applicant, at least to some extent

  • resides with the applicant or is reasonably expected to reside with them

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 their 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 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 reside with the applicant

An applicant has a priority need if dependent children normally reside with them.

If the children do not normally live with the applicant, then it is open to the local authority to decide whether it is reasonable for the children to reside with the applicant.[10]

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.[11] 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 their children are staying temporarily with other relatives or remain in care or foster care only because of the family's housing problems.[12]

Separated parents

For an applicant to be in priority need, the Code of Guidance states that the 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 not in priority need.[13] 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. [14]

However, the Code of Guidance does remind local authorities that where parents are separated, it is often in the best interests of the children to maintain a relationship with both parents.[15] 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.[16] 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. [17]

Some local authorities may not recognise an applicant as being in priority need, even if the children live with them, unless they have a residence order in their favour. This practice has been condemned by the courts.[18] It may be important to distinguish between staying with a parent under a contact order and residing with a parent following a residence order.[19]

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[20]

  • the test is not one of comparison between the two parents or carers as to which has primary care[21]

  • 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 them[22]

Household members who are disregarded

If the applicant is subject to immigration control, any household member who is a person from abroad who is ineligible for assistance is usually disregarded when determining whether the applicant has a priority need.[23]

For example, in an application made by a refugee, any ineligible household members would be disregarded when assessing whether they had a priority need.

If the applicant is not subject to immigration control then any ineligible household members can be considered when assessing whether they have a priority need.[24] If the main housing duty is owed then there are special rules on how it can be discharged.

Applications made before 3 April 2018

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

Last updated: 28 April 2021

Footnotes

  • [1]

    s189(1)(b) Housing Act 1996.

  • [2]

    para 8.8 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [3]

    para 8.7 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [4]

    paras 8.6 and 8.7 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [5]

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

  • [6]

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

  • [7]

    para 8.7 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [8]

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

  • [9]

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

  • [10]

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

  • [11]

    para 8.12 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [12]

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

  • [13]

    para 8.6 Homelessness Code of Guidance, MHCLG, Feb 2018

  • [14]

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

  • [15]

    para 8.10 and 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; R v Oxford CC, ex p Doyle (1998) 30 HLR 506, QBD; para 8.11 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [17]

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

  • [18]

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

  • [19]

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

  • [20]

    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.

  • [21]

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

  • [22]

    Oxford CC v Bull [2011] EWCA Civ 609.

  • [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]

    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).