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Holmes-Moorhouse v Richmond upon Thames
Factual and Procedural Background
The parents of four children separated while still living in the family home in The City. On 9 August 2005, Judge Knowles made two orders:
- The father (“Respondent”) had to leave the family home by 20 September 2005.
- A shared residence order required the three youngest children to spend alternate weeks and half of each school holiday with each parent.
Because he had no alternative accommodation, the Respondent applied on 18 August 2005 to The Council for assistance under Part VII of the Housing Act 1996 (“the 1996 Act”). The Council accepted that he was homeless but decided he had no “priority need.” A statutory review under section 202 confirmed that decision on 3 May 2006.
The Respondent appealed unsuccessfully to the County Court. He succeeded in part before the Court of Appeal, which quashed the Council’s review decision and remitted the matter for reconsideration. The Council (“Appellant”) appealed to the House of Lords, which delivered the present opinion.
Legal Issues Presented
- Whether, for the purposes of section 189(1)(b) of the 1996 Act, children who already have a suitable home with one parent “might reasonably be expected to reside” with a homeless parent so as to give that parent priority need.
- Whether a shared residence order under the Children Act 1989 pre-empts or binds a housing authority’s assessment under the 1996 Act.
- To what extent a housing authority may consider scarcity of housing resources when deciding if it is reasonable to expect children to live with a homeless parent.
- Whether the Council’s review decision contained a material misdirection of law justifying quashing the decision.
Arguments of the Parties
Respondent’s Arguments
- The shared residence order showed the children “might reasonably be expected to reside” with him, thus conferring priority need under section 189(1)(b).
- Section 176 treats accommodation for applicant and children as a single unit; therefore the Council had a duty to provide housing for both.
- The reviewing officer misdirected himself by treating the children’s time with him as mere “staying” rather than “residing.”
Appellant’s Arguments
- The existence of a shared residence order does not bind the housing authority; the statutory question is distinct and must be answered in the context of allocating scarce housing resources.
- It is generally not reasonable to expect the provision of a second home where the children are already adequately housed with the other parent.
- The review decision, though containing an immaterial error about the legal effect of the family order, correctly concluded that the children could not reasonably be expected to reside with the father for Housing Act purposes.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Din v Wandsworth LBC [1983] 1 AC 657 | Housing legislation aims to keep the family together when providing accommodation. | Illustrated the social purpose of Part VII but also the necessity to balance that purpose with resource limitations. |
| R v Hillingdon LBC, ex p Puhlhofer [1986] AC 484 | Part VII is a “lifeline of last resort” and must accommodate practical resource constraints. | Supported the view that scarcity is a relevant factor in assessing reasonableness. |
| In re G (A Minor) (Interim Care Order: Residential Assessment) [2006] 1 AC 576 | Family courts cannot conjure resources; decisions must reflect existing circumstances. | Used to show limits of Children Act jurisdiction when accommodation is not available. |
| Re A (A Child) (Joint Residence: Parental Responsibility) [2008] 3 FCR 107 | Shared residence orders need not entail equal time with each parent. | Cited to explain modern practice but distinguished because here equal time was ordered. |
| In re G (Residence: Same Sex Partner) [2005] 2 FLR 957 | Parental responsibility can be conferred without a residence order. | Mentioned by Judge Hale to suggest alternative legal mechanisms. |
Court's Reasoning and Analysis
Distinct statutory contexts: The House of Lords emphasised that the Children Act 1989 and the Housing Act 1996 address different questions. A family court focuses solely on child welfare within existing resources, whereas a housing authority determines entitlement within a statutory scheme for allocating scarce housing.
Objective standard of “reasonable expectation”: The phrase in section 189(1)(b) is impersonal and must be judged by reference to social norms balanced against resource constraints. It is for the housing authority—not the family court—to apply that standard.
Relevance of resource scarcity: Contrary to the Court of Appeal, scarcity of housing is a legitimate factor. Parliament intended housing authorities to weigh finite resources when deciding priority need.
No duty to intervene in family proceedings: The Lords rejected the suggestion that housing authorities must intervene in residence disputes. Family and homelessness processes serve different ends and should not be entangled.
The review decision: Although the reviewing officer mis-described the effect of the shared residence order, the core question he answered—whether it was reasonable to expect the children also to live with the father—was addressed correctly. The officer’s conclusion that it was not reasonable, given the children already had a home with their mother and accommodation was scarce, was within the permissible range of judgment.
Holding and Implications
Holding: The appeal was ALLOWED. The Council’s review decision stands; the father is not in priority need under section 189(1)(b) of the Housing Act 1996.
Implications: The judgment clarifies that:
- A shared residence order does not automatically confer housing priority on a homeless parent.
- Housing authorities may consider resource scarcity and broader policy objectives when applying the “reasonable expectation” test.
- Family courts should avoid making residence orders dependent on accommodation that may never be provided, and housing authorities are not obliged to intervene in family proceedings.
The decision preserves existing doctrine and does not create new precedent beyond defining the interaction between the Children Act 1989 and Housing Act 1996.
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