Rotten housing eligibility assistance decisions are ripe for challenge (17 June 2022)

Most housing lawyers know that every time there’s a change regarding the eligibility of EEA nationals it takes some time for local authority decision-makers to catch up with the new rules. What is more concerning is that many applicants who applied for and/or obtained pre-settled status before 30 June 2021(and therefore the new rules do not apply to them), are finding that local authorities are failing to apply the law correctly when assessing their homelessness applications when they have had plenty of time and experience to get it right.

I represented ‘A’, a homeless applicant during the section 202 review process and subsequently issued an appeal in the County Court under s204 Housing Act 1996 in respect of their eligibility for housing assistance. The decision subject of the appeal was that A was not eligible under the Housing Act 1996. Greenwich Council’s primary reason was that A’s eldest daughter started primary school in the UK in September 2021, which was after A’s husband (hereafter ‘H’) had left the UK and that in order for A to be eligible for assistance A would have to prove that her daughter started education while H was working in the UK and/or while H was residing in the UK.

A was a third country national who arrived in the UK with H, an EEA national, and their two young children (also EEA nationals) in October 2020. A obtained pre-settled status in May 2021 and applied as homeless to Greenwich Council after fleeing domestic violence in January 2021. A and her two young children were initially provided accommodation by social services but were evicted soon after A obtained pre-settled status. Subsequently, Greenwich Council secured accommodation under s188(1) HA 1996.

We submitted that given A was granted pre-settled status in May 2021, the transitional provisions applied [(EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, Schedule 4] and A had a derivative right to reside as a result of Regulation 16(4) of the Immigration (European Economic Area) Regulation 2016, as the primary carer of a child in education who is the child of an EEA national. Further, we submitted that Regulation 16(3) requires only that the child was residing with the EEA national at the time he was a worker, and that she is now in education. The additional requirements referred to in the Local Authority’s decision (such as that H should have been working or residing in the UK when his daughter started education in the UK) were errors of law. After we filed amended grounds of appeal following disclosure of the housing file, Greenwich Council withdrew its negative decision and made a decision accepting that it owed the main homelessness duty under s193(2) HA 1996. The appeal therefore became academic at that stage.

The practical hurdle for A was providing documentary evidence of H’s employment history in the UK. In A’s case a ground of appeal we relied upon (and raised at the review stage) was the local authority failed to make adequate inquiries of H’s employer and failed to take into account that the DWP was satisfied that H was a worker. A had provided the Local Authority with a copy of the DWP decision awarding H benefits on the basis that H had worker status. In cases involving domestic abuse the EEA national worker is often uncooperative making it difficult for the person fleeing the abuse (and applying as homeless) to meet requests for further information and documentary evidence. The case of Kerr vs Department for Social Development (Northern Ireland) [2004] UKHL 23) is often relied upon in such cases and the ground of adequate inquiries is often worth developing at the review stage. Such cases often involve complex areas of law in addition to evidential difficulties at the inquiries stage, no doubt negative decisions which fall short will be ripe for challenge.

Liz Davies QC and Tessa Buchanan of Garden Court Chambers drafted the grounds of appeal in this matter.


About the author: Sadaf Mir is a solicitor in Duncan Lewis’ Luton-based housing team with extensive experience in possession, homelessness, disrepair and judicial review matters. She frequently assists those with no recourse to public funds, asylum seekers and victims of trafficking with accessing suitable accommodation. If you are affected by any of the issues in this article you can contact her for advice via email at sadafm@duncanlewis.com or by telephone on 020 7923 8468.