Limit to Mother’s Rights to Accommodation

The Court of Appeal recently found that a child’s right to stay in the UK did not give his mother the right to claim housing benefit.

Sarb Gosal a partner in the Private Resolution Department said, “This case illustrates one of the limits of consideration of the overriding needs of the child”.

In the case in question, the Court ruled that a person who no longer has the right to remain in the UK but sought housing assistance under the Housing Act 1996 in reliance on a derivative right of residence as a primary carer of her son, a British citizen, would only be entitled to accommodation if her son would in effect be compelled to leave the United Kingdom if she left.

The complexity in this case arose from two apparently contradictory tenets. The first of these was that the child’s interests must be paramount (and which would imply that no action could be taken that could deprive them of their primary carer). The second tenet, which applied specially to housing benefit, was whether the claimant’s son would be “unable to reside in the UK … if the claimant were required to leave the UK”.

The court was making no comment about the claimants right, or otherwise, to stay in the UK and was only addressing the issue of housing benefit. In this case, the child’s father (secondary carer) was able to look after him and so the child would not be forced to leave the UK if his mother was. Accordingly, the Court decided that the mother should not be entitled to housing benefit, even if this meant that she would have to leave the country.