Law Report: Housing authority's legal duty to homeless was discharged: Regina v Northavon District Council, Ex parte Smith. House of Lords (Lord Templeman, Lord Jauncey of Tullichettle, Lord Mustill, Lord Slynn of Hadley and Lord Nolan). 14 July 1994.

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A housing authority, which had decided in accordance with its duties under the Housing Act 1985 that an applicant, who resided with his children, was intentionally homeless and therefore not entitled to permanent accommodation, could not be required to provide accommodation to prevent the children from becoming homeless pursuant to a request from the social services authority under section 27 of the Children Act 1989, if to do so would prejudice the housing authority's discharge of its functions, since section 27 did not enlarge or amend the housing authority's powers or duties under the Housing Act.

The House of Lords allowed the district council's appeal against the Court of Appeal's decision ((1994) QB 248) and restored Mr Anthony Lester QC's dismissal of the application for judicial review.

In October 1992 the district council, a housing authority, decided that the applicant, who resided with his wife and five children, had become intentionally homeless. It provided temporary accommodation under the Housing Act 1985 until January 1993. Although the applicant was to be given a reasonable preference under section 22, he could not be given priority without destroying the fairness of the allocation of accommodation, and he was entered on the waiting list.

The applicant applied under section 17(1) of the Children Act 1989 to the social services authority, Avon County Council, for assistance in cash for a deposit on private rental accommodation. The social services authority declined to exercise its powers under section 17 but instead, invoking its powers under section 27 of the Children Act, requested the district council to provide assistance in housing.

The district council replied in January 1993 that it could not comply with the request for help because to do so would 'unduly prejudice', within section 27, the discharge of its functions as a housing authority. The applicant applied for judicial review of the decision letter.

Anthony Scrivener QC and Timothy Straker (Sharpe Pritchard for District Council Solicitor) for the district council; Derek Wood QC, Jan Luba and David Watkinson (Bobbetts MacKan, Bristol) for the applicant.

LORD TEMPLEMAN said that the social services authority would have been aware that the district council could not provide permanent accommodation for the applicant without breach of the rules which had been devised to allocate accommodation fairly to people on the waiting list.

In the present case, the authorities had entered into a sensible arrangement. The social services authority put down cash as a deposit for rent and the current rent was paid by the district council who recovered 90 per cent from central government because the applicant was entitled to housing benefit. The present case turned on the interaction between two statutory codes. Where one and the same authority was both housing and social services authority, the same problems of intercation would arise.

Nothing in section 27 enlarged or otherwise amended the powers or duties of the requested authorities under other statutes.

Section 27(2) expressly provided that the request must be compatible with the requested authority's own statutory duties and obligations and must not unduly prejudice the discharge of any of its functions.

In considering an application for accommodation for the applicant and his family, the housing authority must judge the application in accordance with its duties under the Housing Act 1985. The district council's letter was a lawful response to the request made by the social services authority.

Section 27 imposed on the district council a duty to ascertain whether it could, without unduly prejudicing the discharge of its functions, provide a solution or co-operate in a securing a solution to prevent the children from suffering from lack of accommodation. Failing any acceptable solution it would have been the duty of the social services authority to protect the children by providing assistance towards the accommodation.

In the event the district council was able to co-operate.