The difference a day makes


Homeless persons aged 16 or 17 are deemed to be in priority need for accommodation under the Homelessness (Priority need for Accommodation) (England) Order 2002. Many such applicants will have been evicted from their homes by their parents.



In Robinson v Hammersmith & Fulham LBC (2006) EWCA Civ 1122, the Court of Appeal considered important issues that commonly arise in applications by young persons for assistance under the Housing Act 1996.



On 17 February 2005, the applicant's mother asked her to leave the family home. At that time, the applicant was 17 years old, turning 18 on 11 March. She approached the authority for assistance as a homeless person under the Housing Act 1996. A housing officer accepted that, as a person younger than 18, she was in priority need, but told her that it would take more than 28 days to complete inquiries into her application, by which time she would have turned 18 and therefore not be in priority need.



Having taken advice from a law centre, the applicant went back to the authority. She was provided with interim accommodation and referred to the authority's mediation service in an attempt to reconcile her with her mother. On 9 March, her mother refused to engage in mediation. On 10 March (the day before the applicant's 18th birthday), the authority decided that she had no priority need and informed her of that decision by telephone. It decided not to send the written notification of that decision until the following day. The applicant requested a review of the decision that she was not in priority need, and that decision was upheld.



On appeal to the county court, it was argued that the original decision was unlawful because an authority cannot postpone the making of a decision on a homelessness application and that the decision should therefore have been varied on review. The authority resisted the appeal on the ground that any postponement or delay in making its decision was justified, as it was attributable to the attempt at mediation.



Furthermore, it was argued that, in any event, the reviewing officer was obliged to consider the situation as at the date of the review (see Mohamed v Hammersmith & Fulham LBC (2002) 1 AC 547), by which date the applicant was 18 years old. The county court judge accepted the authority's arguments and dismissed the appeal. He decided, among other things, that the delay of one day in providing notification of the decision was de minimis. The applicant appealed to the Court of Appeal.



The appeal was allowed. The original decision under section 184 was unlawful because the applicant had been younger than 18 at the time it was made (10 March) and therefore in priority need. There was no scope for the application of the de minimis principle.



More significantly, the court held that the principle established in Mohammed that a reviewing officer had to look at the facts at the date of the review does not apply where an unlawful decision by the original decision-maker had deprived the applicant of rights to which he would otherwise have been entitled if the decision had been taken lawfully. The reviewing officer should have found that the original decision was unlawful and made a decision that restored the rights that the applicant would have had if the original decision had been lawful - that is, by finding that she was in priority need.



The court also gave guidance on the circumstances in which an authority may postpone making a decision on an application by a 17-year-old child. It was held that it is unlawful for an authority to postpone making a decision even for a short period, on the basis that by postponing that decision the child will have reached the age of 18 before the decision is taken.



Although reconciliation and mediation were to be encouraged in cases of young persons who have been excluded from the family home, it is wrong for an authority to persuade a family into mediation and then use the time that the mediation would take to deprive the child of a right that he would have had without mediation. The mediation process is wholly independent of the inquiry process, and the authority has no power to defer making inquiries on the ground that there is a pending mediation.



Andrew Dymond, Arden Chambers, London