Priority need and the meaning of ‘dependent children’

19 and 21-year old son and daughter of a homeless applicant are not ‘dependent children’ for the purposes of assessing ‘priority need’

Introduction

Stefan Liberadzki recently appeared for a local authority in a homelessness appeal under s.204 of the Housing Act 1996. Here he discusses the Court’s decision that the appellant’s children could not count as ‘dependent children’ because they were not 18 years of age or under.

Priority Need?

S.189(1)(b) of the Housing Act 1996 accords priority need for accommodation to “a person with whom dependent children reside or might reasonably be expected to reside”. Somewhat surprisingly there is no express definition of ‘child’ in the legislation or the Homelessness Code of Guidance for Local Authorities, nor is there any appellate case law directly on the point.

In this case, the appellant had a 19 year-old son and a 21 year-old daughter. She was assessed as homeless, but the local authority’s s.202 review decision determined that she did not have priority need because her children’s ages meant they could not count as ‘dependent children’.

On appeal to the County Court, it was argued by the appellant that the local authority had erred in applying an arbitrary age limit, and ‘dependency’ could potentially exist at any age where there was a parent-child relationship. She further argued that the local authority had failed to carry out sufficient enquiries into whether the children were in fact dependent and whether they actually resided with her or might be expected to.

The Decision

The Circuit Judge held that as a matter of law a person aged 19 or over, i.e. who has reached their 19th birthday, cannot be a dependent child for these purposes. She referred to paragraph 10.7 of the Code of Guidance, which states:

“The 1996 Act does not define dependent children, but housing authorities may wish to treat as dependent all children under 16, and all children aged 16-18 who are in, or are about to begin, full-time education or training or who for other reasons are unable to support themselves and who live at home.”

The Judge found that the Code sets out a clear structure as follows:

1. Children under the age of 16 will always be treated as dependent.
2. Children aged 16 to 18 may be dependent because of being in full-time education or training, or for other reasons.
3. People aged 19 or over are not envisaged as being ‘dependent children’ at all.

Reference was also made to the Court of Appeal’s decision in Miah v Newham LBC [2001] EWCA Civ 487, where it was said that the reference in the Code to “aged 16-18” must be interpreted as including the age of 18, i.e. a person who has not yet reached their 19th birthday. That decision did not consider or suggest the possibility of a person aged 19 or over being classed as a dependent child.

Comment

This decision is not binding on other courts, but it may provide reassurance to local authority homelessness departments who are faced with a contention that an applicant’s adult son or daughter is a ‘dependent child’. Practitioners should, however, consider in such cases whether the applicant’s adult child is ‘vulnerable’ and resides or might reasonably be expected to reside with them, pursuant to s.189(1)(c).