Possession proceedings and children

Toby Vanhegan, Christopher Baker and Sam Madge-Wyld report on a ruling on the interplay between s. 11 Children Act 2004 and possession proceedings under Part 7 Housing Act 1996.

A local authority must make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children: s.11, Children Act 2004.

In Castle v Commissioner of Police for the Metropolis [2011] EWHC 2317, it was held by the Divisional Court that this required public bodies, to whom the duty applied, to carry out their existing functions in a way that takes into account the need to safeguard and promote the welfare of children, albeit that s.11 does not redefine those functions.

In Huzrat v Hounslow LBC [2013] EWCA Civ 1865; [2014] HLR 17, the Court of Appeal held that s.11 does not add fresh criteria for determining whether an applicant with children is intentionally homeless within the meaning of s.191, Housing Act 1996.

Facts: Mohamoud

Ms Mohamoud applied to the Royal Borough of Kensington and Chelsea for assistance under Part 7, Housing Act 1996. She was provided with a non-secure tenancy of a flat in Wandsworth pending inquiries into her homelessness.

The authority subsequently notified her that she had a priority need, by her young son, but was not owed the main homelessness duty because she had become intentionally homeless from accommodation in Bristol.

At the same time, in an accompanying letter, the authority informed Ms Mohamoud that she could remain in her accommodation for a further six weeks and provided her with advice on how she could go about finding accommodation in the private sector. This accompanying letter, also advised Ms Mohamoud that she could approach Wandsworth’s Children’s Services for assistance.

Ms Mohamoud's request to review the decision that she was intentionally homeless out of time was refused. Ms Mohamoud did not leave her accommodation and, after the period of six weeks had elapsed, the authority served her with a notice to quit and around two months after the expiry of the notice to quit brought a claim for possession.

Ms Mohamoud defended the claim on a number of grounds, which included a claim that her eviction would infringe her Article 8 rights and a public law challenge based on an allegation that the authority had failed to discharge its duty under s.11, Children Act 2004 because the authority had failed to carry out an assessment so as to identify the best interests of her child and had therefore not treated her child’s interests as a primary consideration.

In the intervening period, the authority referred Ms Mohamoud’s case to Wandsworth’s Children’s Services and carried out its own Children Act 1989 assessment.

Eventually at a trial, Ms Mohamoud’s defence was dismissed, but the deputy district judge gave her permission to appeal to the Court of Appeal.

Facts: Saleem

Ms Saleem was married with three children. She applied to Wandsworth LBC for homelessness assistance and was provided with a non-secure tenancy pending inquiries into her homelessness.

Wandsworth subsequently determined that she was not owed the main homelessness duty because she had become intentionally homeless. Wandsworth notified Ms Saleem that she could remain in her accommodation for a period of 28 days. Wandsworth refused to carry out a review of its decision that Ms Saleem had become intentionally homeless out of time. Around six months later, Wandsworth served her with a notice to quit and, on its expiry, commenced possession proceedings.

After proceedings had been commenced Wandsworth’s housing department referred Ms Saleem’s case to its children’s services department. Wandsworth’s children’s services department notified Ms Saleem’s solicitors that they would not carry out a Children Act 1989 assessment until a possession order had been made.

Ms Saleem defended the possession claim on a number of grounds that included a claim Wandsworth had failed to comply with s.11, Children Act 2004 and that her eviction would infringe her Article 8 rights.

A district judge dismissed her defence and the Court of Appeal granted her permission to appeal on the s.11 ground only.

Decision

In Mohamoud v Kensington & Chelsea RBC Saleem v Wandsworth LBC [2015] EWCA Civ 780, July 21, 2015 (Longmore, Black & Sharp LJJ) the Court of Appeal dismissed the appeals. While the duty under s.11 is not confined to the making of strategic arrangements, e.g. the provision of training or information, it is not a free-standing duty; it cannot be detached from the statutory functions it is designed to secure. Nor can it re-write or re-define the function that is being exercised. The duty is therefore qualified by the nature of the function being carried out and what the particular circumstances require.

In practice, the s.11 duty added nothing to an authority’s functions under Part 7. In particular, the s.11 duty could not, in the context of a claim for possession of Part 7 accommodation, require an authority to withdraw a notice to quit or defer the recovery of possession after a notice to quit had been served once its duties under Part 7 had come to an end. It followed that in such circumstances an assessment to ascertain a tenant’s child’s best interests was therefore unnecessary as, whatever the outcome, it could not prevent an authority from recovering possession. The appropriate forum for deploying arguments about a child’s best interests is in the court via an Article 8 proportionality defence or during a s.204 appeal where it is incumbent upon the tenant to notify the authority of any relevant facts concerning its child. In the instant cases, the appellants had not appealed against the decisions that their evictions were proportionate and, in any event, the facts came well short of passing the high threshold required to establish a successful Article 8 defence.

Moreover, even if there was a duty to conduct an assessment, the failure to conduct such an assessment could not provide a public law defence to a possession claim because there was an insufficient link between the making of a possession order and the failure to conduct an assessment.

Toby Vanhegan, Christopher Baker and Sam Madge-Wyld are barristers at Arden Chambers. Toby appeared for both appellants as junior counsel and can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. Christopher and Sam appeared for Kensington & Chelsea and can be contacted by email This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it. respectively.