"Manufacturing homeless persons": Right to rent and section 17

Last Thursday, the Administrative Court took its first look at what is likely to become a major issue in relation to applications for support under section 17 of the Children Act 1989 by families with no recourse to public funds ("NRPF").

In R (N) v Greenwich LBC (unreported extempore judgment; case summary available on Westlaw and Lawtel) the claimant (represented by Sarah Steinhardt of Doughty Street Chambers) was a 7-year-old French national, living in Greenwich with his mother, an overstayer from Gambia. Greenwich had refused to provide accommodation under section 17, on the basis that the family were not in need and could stay with friends or family in the short term while the mother found accommodation. The claimant had issued a claim for judicial review of this decision.

On the claimant's application for interim relief, Andrew Thomas QC, sitting as a Deputy High Court Judge, held that the claimant had a strong prima facie case that the assessment was unlawful and granted an order requiring Greenwich to provide accommodation ending the determination of the claim.

The judge pointed out that, although the assessment had suggested that the claimant and his mother could stay with family or friends in the short term, it had not identified particular individuals - an interesting approach in light of the way local authorities have tended to rely on the decision in R (MN) v Hackney LBC [2013] EWHC 1205 (Admin) to absolve themselves of having actually to identify sources of alternative support allegedly available to destitute families.

Further, the judge pointed out, if it was correct that the mother would be prevented from being able to rent privately due to the "right to rent" provisions of section 21 of the Immigration Act 2014, then there was no immediate prospect of her finding suitable accommodation in the short term. (Greenwich's suggestion that the family could stay in bed & breakfast accommodation had not actually been addressed in the assessment). The potential impact of the Court's decision on other cases affected by section 21 was not sufficient to outweigh the consequences for the family of refusal of relief.

This effect of the 'right to rent' provisions has been widely identified, across the spectrum of those dealing with families with NRPF (see e.g. ILPA's response to DCLG consultation on Tackling Rogue Landlords and the London Borough of Lewisham's NRPF update to its Public Accounts Select Committee in March 2016). However, it was largely brushed off in the Government's evaluation of the pilot of the right to rent provisions in the West Midlands (pp32-33), which noted the potential burden on local authorities but commented that equally the provisions might encourage people to either regularise their immigration position or leave the country more quickly, thereby reducing local authorities' NRPF caseloads; and that "due to the fact that the scheme has only been running six months it was felt too early to tell which of these potential effects might be realised".

Now that the scheme has been rolled out across the country, we may be about to discover which proves to be the case. Should the case of R (N) v Greenwich proceed to a full hearing, the Court's decision may well play a significant role in determining the matter.