Homelessness assistance and privately fostered children

July 6, 2020

In a recent homelessness appeal, Tyreese Jones v LB Southwark, the County Court has held that children who are privately fostered after the age of 16 have priority need for homelessness assistance from local authorities.

Alexander Campbell appeared for the successful appellant.

What does the decision mean for local authorities?

Whether a homeless person has priority need status or not makes the difference between a local authority having a duty to secure suitable accommodation for them or not. So for people who were privately fostered after age 16, the legal issues which were argued in this case are of major practical importance.

Time will tell whether the wider definition of “fostered” which the court adopted in this case will be applied by local authorities in other cases or whether this issue is likely to return to the courts in the future.

Background

Tyreese Jones was fostered in a private fostering arrangement after reaching the age of 16.

In 2019, after becoming homeless, he applied for homelessness assistance to the local authority, the London Borough of Southwark.

The council decided that Mr Jones was not in priority need for assistance. The council upheld that decision when they conducted a statutory review.

Mr Jones appealed the review decision to the County Court under section 204 of the Housing Act 1996.

The parties’ arguments

Mr Jones argued that he was in priority need for the purposes of the Housing Act 1996.

He relied on secondary legislation which the Secretary of State had made, which set out certain categories of person who are automatically considered to be in priority need. Article 4 of the Homelessness (Priority Need for Accommodation) (England) Order 2002 (‘the 2002 Order’) states that a person will be in priority need if they are under 21 and were fostered after reaching age 16.

The council argued that the term “fostered” in article 4 of that 2002 Order does not apply to private fostering arrangements unless the child is also disabled. The council pointed to section 66 of the Children Act 1989 which restricts the terms “privately fostered child” and “to foster a child privately” to under-16s, unless they are also disabled.

The court’s decision

The court found for Mr Jones and quashed the council’s decision.

The judge held that the term “fostered” in article 4 of the 2002 Order takes its meaning from section 24 of the Children Act 1989.

The judge analysed section 24 and decided that it is intended to encompass within the definition of “privately fostered” anyone who was privately fostered after the age of 16 irrespective of whether they are disabled or not.

The judge noted that section 66 of the Children Act 1989 restricts the terms “privately fostered child” and “to foster a child privately” to under-16s, unless they are also disabled.

However, the judge decided that that more restrictive definition is limited to the parts of the Children Act 1989 where section 66 is directly applicable. The judge decided that that more restrictive definition should not be applied to section 24 and therefore should not be applied to article 4 of the 2002 Order.

Analysis

The court’s construction of the term “fostered” widens substantially the categories of people who have priority need for homelessness assistance.

If the same interpretation of the term “fostered” is applied more widely, it will mean that any child who was fostered in a private fostering arrangement after reaching age 16 will automatically qualify as being in priority need.

If the council’s arguments had succeeded in the appeal, it would have meant that children who are privately fostered after reaching age 16 would only have priority need status if they are also disabled. That would have restricted the protection of priority need status to a much smaller pool of homeless people.