This case concerned the factors that a housing authority must take into account when exercising its discretion to accommodate a homeless applicant pending the outcome of an internal review into (in this case) the reasons for this man’s homelessness.
A housing authority’s duty to provide interim accommodation under s188(1) will come to an end when the local authority makes a substantive decision that brings their accommodation duty to an end, for instance that the applicant is not in priority need or is intentionally homeless (Section 188 (1ZB) HA 1996)
However, the housing authority does have a power to continue to provide interim accommodation pending a review under section 188(3).
“Once the review has been completed, if it is adverse to the applicant, the applicant has the right under section 204 to appeal to the county court on any point of law, and if there is such an appeal, the local housing authority may continue to secure that accommodation remains available to that person pending determination of the appeal. It follows, that both pending a review and pending an appeal, the local housing authority is given a discretionary power to provide interim housing. The Act itself gives no guidance as to the way in which that discretionary power is to be exercised.”
Advisers should request that any interim accommodation be extended as part of their review request as authorities are not required to consider providing or extending interim accommodation pending review unless positively requested to do so (R v Newham LBC ex p Lumley (2003) 33 HLR 111)
A refusal to provide interim accommodation pending review is challenged by way of judicial review (not to the County Court) and the principles an authority must apply when deciding whether or not to provide interim accommodation were set out in the case of R v Camden LBC ex p Mohammed.
In deciding whether to exercise discretion to provide accommodation pending a review, a local authority should take account of:
- the strength or weakness of the review case – this should include consideration of matters of which the authority were informed before the original decision but did not investigate for whatever reason.
- any new material provided at review stage which may have a real effect on its outcome – even if the original review was lawful, failing to consider new evidence may lead to an unlawful decision around accommodation pending review.
- the personal circumstances of the applicant and the consequences of an adverse decision.
It is accepted, however, on behalf of the respondent Council that as in the case of any discretionary power, discretion is not an unlimited discretion, but it must be a discretion which is exercised in accordance with the perceived purposes of the statute.
It is trite law, that in the context of the inquiries that the local housing authority has to make under the relevant statutory provision, in this case section 184, it should give the applicant a proper opportunity to answer criticisms that may be made about his or her account.
A good example of the Court’s approach is in the judgment of Simon Brown J., as he was, in R. v. Gravesham Borough Council ex p. Winchester (1986) 18 H.L.R. 207 at 215 where he said: “The applicant must be given an opportunity to explain matter which the local authority is minded to regard as weighing substantially against him.”
The facts of this particular case
L was homeless and suffered from epilepsy and post-traumatic stress disorder. Medical evidence showed that his epilepsy became worse when he was homeless.
He was assessed as being in priority need. He was housed by the local authority but later found to be intentionally homeless. The local authority wrote to L in June 2019 to inform him that it had discharged the ‘relief’ duty imposed under s.189B and therefore no longer had a duty to secure accommodation for his use.
L sought a review of that decision under s.202 and the local authority wrote a letter refusing to exercise its discretion under s188(3) to house him pending that review. The local authority found that he had not taken the reasonable steps agreed in his personalised housing plan created for him under the ‘relief’ duty.
The court decided that the housing authority’s letter refusing interim accommodation was defective as it had failed properly to consider L’s personal circumstances and the negative impact on his health in not providing interim accommodation. It had therefore failed altogether to consider how these factors should impact on its decision of whether or not to grant interim accommodation.
This decision is a reminder for advisers requesting accommodation pending review to include as much information as possible about the client’s personal circumstances and the negative impact of the client becoming / remaining homeless during the review if accommodation is not provided.
Many Housing Authorities now produce standard response letters quoting the Mohammed criteria and stating that all material factors have been taken into account in denying accommodation pending review. This case illustrates however, that where an authority does not give proper consideration to the factors laid down in Mohammed, then that decision may be defective and a court may award interim relief.
JR can take up to 30 weeks for the court to make a decision and so if the matter is urgent, then an applicant can apply for an injunction from the court requiring the LA to provide temporary accommodation pending the outcome of the review.
In the absence of interim relief the applicant would have had to wait 6 months for the court to rule by which time the review would probably have been concluded and the client would have been on the streets for 6 months.