I have only been able to locate this report from the Independent. If anyone has a transcript please forward a copy to me and I will included it here
The Smith family included 5 children all aged under 10 years old. The family had been found to be intentionally homeless by Northavon District Council which then refused to consider a request pursuant to Section 27 of Children Act 1989 by Avon County Council for accommodation or financial assistance which had carried out an assessment under Section 17 of the Act and found that the children were in need. The District Council justified this on the basis that they had considered the family's circumstances in connection with their homelessness application and, having found that no duty was owed were not obliged to consider the County Council's request to assist the family.
Mr Smith's Judicial Review application was dismissed in the High Court. This was overturned by the Court of Appeal which held that regardless of the finding of intentional homelessness the District Council were required to comply with the request for assistance made pursuant to the Children Act 1989 unless they could show (for the purposes of Section 27(2)) that to do so would be incompatible with their own statutory or other duties or obligations and would not unduly prejudice the discharge of any of their functions. In a nutshell the absence of a duty to assist under what was then the Housing Act 1985 did not mean that a duty was not owed under the Children Act 1989.
As far as I can remember this was the first case in which the Children Act 1989 was used as a means to obtain assistance for homeless families. The Act was still very new. Most of it had only just come into force the previous year. The case was a tribute to the imagination and creativity of Jan Luba (now QC) as counsel for the Smiths. Most people at the time (me included) had no idea that the Children Act could be used for this purpose.
This case should have settled the question of whether homeless families with children are entitled to accommodation or other assistance even though they have been found to be intentionally homeless or otherwise not entitled to assistance under what is now the Housing Act 1996. Unfortunately this issue is still a problem over twenty years later. It is still standard practice in all of the councils I deal with for Housing Departments to wash their hands of homeless families once they have been found not to be owed a full duty under the Housing Act 1996.
The introduction of Section 213A of the Housing Act 1996 has not helped very much in practice. This Section requires Housing Departments to refer intentionally homeless families with children to the appropriate Children's Services Department. This requirement is often observed by Housing Departments adding an extra paragraph to a decision letter advising a family that if they wish to do so they can approach the Children's Services Department for assistance. Even if the family do receive a helpful response from the Children's Services Department there is no requirement in this new section for the Housing Department to do more than to make the initial referral. The staff in the Children's Services Department can often do little more than provide temporary accommodation and advise the family to find private sector accommodation which they are then unable to find. The Children's Services Department staff are usually unaware of any assistance being available from the Housing Department even after contacting the Housing Department.
Assistance is of course available from the Housing Department. Since the amendment of the Housing Act 1996 by Section 148 of the Localism Act 2011 Housing Department's have been able to discharge duties owed to homeless families by referring them to private sector landlords. In order to be able to do this Housing Department's have usually built up a contacts with a number of private landlords who can offer such properties. There is nothing that I can see to prevent Housing Department's referring intentionally homeless families with children to such landlords if they are requested to do so by the Children's Services Department. The fact that this is not happening anywhere ( as far as I am aware) means that in terms of local authority thinking and practice very little has changed since the judgement in this case set out the legal position.
Looked at from a local authority point of view I can see that this case must be frustrating. Housing Department's only have a limited amount of housing stock to offer to homeless families. Authorities generally therefore see their role as finding reasons not to give this to people. On the face of it they are entitled to refuse to assist intentionally homeless families. The requirement that they must nevertheless assist them if they have children completely undermines the authority's function in processing homeless applications. It means that people turned away at the front door following a negative decision pursuant to the Housing Act 1996 can get accommodation through the back door following what is likely to be an inevitable finding that the children of the family are in need because they are homeless. This clash between the two Acts has been at the heart of much of the caselaw since 1993. Nevertheless I believe that councils should accept that families with children should not be made street homeless and that they will be required to take steps to prevent this even if the family are intentionally homeless.
A final thought is that the 2013 Statutory Guidance Working Together to Safeguard Children states (at page 91) that Children's Services Departments can seek assistance from Housing Departments/Authorities for assistance for children in need. This brings us back to the Smith case in that it would be first authority as I can see to rely on in challenging any refusal by the Housing Department to provide assistance if requested to do so. Families with children and those advising them should be asking Children's Services Departments to make this request as part of a plan for assisting the families.