Christopher Mitchell v London Borough of Islington [2020] EWHC 1478 (ending of Housing Act Interim Duties)

10 June 2020

Overview

C sought judicial review after Islington Borough Council (D) terminated his rights to temporary accommodation under S188(1) of the Housing Act 1996.

By the time the case came to court he was living with his brother and had been offered assistance with obtaining private rented accommodation.

Therefore the main LEGAL question was how and when a local authority’s interim duty under section 188 of the 1996 Act can come to an end, in light of amendments made to section 188 by the Homelessness Reduction Act 2017 (“the 2017 Act”).

Held:

“In the scenario where subsection (1ZA)(b) is applicable, an applicant for homelessness assistance will be benefitting both from the interim duty to accommodate under section 188(1) and the parallel duty to assist with securing accommodation under section 189B(2).

Section 188(1ZA) enables a local housing authority to bring the interim duty to accommodate to an end where it has concluded its inquiries under section 184 and has decided that the applicant does not have a priority need. It is permitted to do this even though the separate and different initial duty under section 189B(2) is continuing. This is what is specifically contemplated and provided for in section 188 (1ZA)(b).

In these circumstances, it is an understandable requirement that in order to bring that interim duty under section 188(1) to an end, the applicant must receive notice of a decision from the local authority that makes reference to the continuing initial duty under section 189B(2).

What is the decision that has to be notified? It is a decision by the authority to the effect that when the [separate ‘securing’] duty they owe to the applicant section 189B(2) comes to an end, they will not owe the applicant any duty under section 190 or 193 of the 1996 Act.

The statute requires, and the applicant is entitled to, notification that upon the continuing section 189B(2) duty coming to an end, the local authority will not be under an obligation to provide accommodation to the applicant under section 190 or 193.

Notification in that form provides some safeguard against an applicant wrongly assuming that the section 189B(2) duty has also come to an end when that is not the case.”

In a similar case settled by consent (Harris, settled in March but mentioned in the above Mitchell case) commented on here, https://nearlylegal.co.uk/2019/04/ending-duties-after-the-hra/ involving the same council, Giles Peaker of Nearly Legal fame, working at the Housing and Public Law team at Anthony Gold Solicitors in South London, has analysed the situation thus:

“I have been a bit surprised that cases about the performance of the Homelessness Reduction Act duties have not come up before. It may well be that they have been settled, as this one was. I very much doubt that this will be the last. This one, though, makes the clear argument (and I think rightly) that the HRA duties are both sequential and cumulative. So, for example, a council might be able to discharge a s.189B duty and issue a negative s.184 decision at the same time, but it can’t lawfully do so unless it has carried out the s.189A duty, including assessment and provision of the personal housing plan, beforehand. It is also surely right that where the Housing Act 1996 as amended requires written notice of a) duties owed and b) termination of duties, those cannot simply be skipped or assumed to be wrapped into an ‘overall’ decision on duties under s.184.

In the Harris case, it was clear that the s.189B(2) [securing] had not come to an end. The mere effluxion of time – the 56 days – did not end the duty. The authority must still decide to end the duty and must give notice (s.189B(5) and (6)), including notifying the applicant of their right to seek a review. This had not been done, so the duty was not ended.”

Case Facts

C was 30 years old, with no fixed address and suffered from numerous medical conditions which affected the way he interacted with people on a day to day basis.

In June 2018 C was assessed as being eligible for homelessness assistance. D provided C with temporary accommodation from August 2018 to October 2018, until it was decided that he did not have a ‘priority need’ for housing assistance under s189(1)(c) of the 1996 Act.

D told C of its decision in letter form.

A social worker appealed this decision on the basis of his medical conditions, and D agreed to carry out a review. However, it refused to provide accommodation pending the outcome of that review.

Numerous letters were sent to D, stating that the failure to provide accommodation was in conflict with its ongoing duty under s188(1). D could only discharge its duties in ways explicitly specified  under 188(1ZA) 2017 Act. C claimed that they had failed to do so, and therefore still owed him the duty to provide interim accommodation under s188(1) because it was still ongoing until lawfully brought to an end.

The Law

Section 188 of the 1996 Act in its amended form provides as follows:

“188.— Interim duty to accommodate, in case of apparent priority need.

(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they must secure that accommodation is available for the applicant’s occupation.

(1ZA) In a case in which the local housing authority conclude their inquiries under section 184 and decide that the applicant does not have a priority need—

(a) where the authority decide that they do not owe the applicant a duty under section 189B(2), the duty under subsection (1) comes to an end when the authority notify the applicant of that decision, or

(b) otherwise, the duty under subsection (1) comes to an end upon the authority notifying the applicant of their decision that, upon the duty under section 189B(2) coming to an end, they do not owe the applicant any duty under section 190 or 193.

(1ZB) In any other case, the duty under subsection (1) comes to an end upon the later of—

(a) the duty owed to the applicant under section 189B(2) coming to an end or the authority notifying the applicant that they have decided that they do not owe the applicant a duty under that section, and

(b) the authority notifying the applicant of their decision as to what other duty (if any) they owe to the applicant under the following provisions of this Part upon the duty under section 189B(2) coming to an end

(1A) But if the local housing authority have reason to believe that the duty under section 193(2) may apply in relation to an applicant in the circumstances referred to in section 195A(1), they shall secure that accommodation is available for the applicant’s occupation until the later of paragraph (a) or (b) of subsection (1ZB)] regardless of whether the applicant has a priority need.

(2) The duty under this section arises irrespective of any possibility of the referral of the applicant’s case to another local housing authority (see sections 198 to 200).

(2A) For the purposes of this section, where the applicant requests a review under section 202(1)(h) of the authority’s decision as to the suitability of accommodation offered to the applicant by way of a final accommodation offer or a final Part 6 offer (within the meaning of section 193A), the authority’s duty to the applicant under section 189B(2) is not to be taken to have come to an end under section 193A(2) until the decision on the review has been notified to the applicant.

(3) Otherwise, the duty under this section comes to an end in accordance with subsections (1ZA) to (1A), regardless of any review requested by the applicant under section 202. But the authority may secure that accommodation is available for the applicant’s occupation pending a decision on review.”

In this case, there was no dispute that D’s interim duty was triggered – when the application was made, D had reason to believe that C could meet the criteria under S188 (1) (applicant may be homeless, eligible for assistance and have a priority need).

The issue was one of law: when and how that interim duty came to an end.

C claimed it was in accordance with subsections (1ZA) to (1A) (giving notice in an appropriate manner).

D, the council, argued that it was when D decided C was not in priority need, as that would mean falling short of criteria in s188(1).

It was argued by C that if the 1996 Act had remained un-amended, then D notifying C of its decision in letter form would have been sufficient to end the duty. However the 2017 amendments meant that a letter to that effect would not now be enough.

Whereas D argued that the interim duty only lasted until a decision was reached under section 184(1) of the 1996 Act and that it was sufficient to notify C under section 184 of the 1988 Act that they had decided C was not in priority need, to bring the interim duty to an end.

Section 189A(9) 1996 Act provides that until the authority consider that they owe the applicant no duty, it must keep their assessment of the applicant’s case under review.  Section 189B was also inserted by the 2017 Act, which has its own mechanism for discharging D’s duty.

Where the local housing authority has concluded that the applicant does not have a priority need, the duty can be brought to end if any of the circumstances set out in section 189B(7) apply, and the authority decide to give notice to the applicant bringing the duty to an end, 189B(5).

The Claimant’s solicitors also placed reliance upon paragraph 15.8 of the Secretary of State’s Code of Guidance and the outcome of a claim in R(Harris) v London Borough of Islington CO/1282/2019. That Guidance makes it clear that it is not merely a decision that the person is not in priority need that is enough; it is a notification of a decision that no further duty under the relief duty is owed, either.

s189B – the initial duty owed to all eligible persons who are homeless

(1) This section applies where the local housing authority are satisfied that an applicant is—

(a) homeless, and

(b) eligible for assistance.

(2) Unless the authority refer the application to another local housing authority in England (see section 198A(1)), the authority must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least—

(a) 6 months, or

(b) such longer period not exceeding 12 months as may be prescribed.

(3) In deciding what steps they are to take, the authority must have regard to their assessment of the applicant’s case under section 189A.

(4) Where the authority—

(a) are satisfied that the applicant has a priority need, and

(b) are not satisfied that the applicant became homeless intentionally,

the duty under subsection (2) comes to an end at the end of the period of 56 days beginning with the day the authority are first satisfied as mentioned in subsection (1).

(5) If any of the circumstances mentioned in subsection (7) apply, the authority may give notice to the applicant bringing the duty under subsection (2) to an end.

 (6) The notice must—

(a) specify which of the circumstances apply, and

(b) inform the applicant that the applicant has a right to request a review of the authority’s decision to bring the duty under subsection (2) to an end and of the time within which such a request must be made.

(7)The circumstances are that the authority are satisfied that—

(a) the applicant has—

(i) suitable accommodation available for occupation, and

(ii) a reasonable prospect of having suitable accommodation available for occupation for at least 6 months, or such longer period not exceeding 12 months as may be prescribed, from the date of the notice,

(b) the authority have complied with the duty under subsection (2) and the period of 56 days beginning with the day that the authority are first satisfied as mentioned in subsection (1) has ended (whether or not the applicant has secured accommodation),

(c) the applicant has refused an offer of suitable accommodation and, on the date of refusal, there was a reasonable prospect that suitable accommodation would be available for occupation by the applicant for at least 6 months or such longer period not exceeding 12 months as may be prescribed,

(d) the applicant has become homeless intentionally from any accommodation that has been made available to the applicant as a result of the authority’s exercise of their functions under subsection (2),

(e) the applicant is no longer eligible for assistance, or

(f) the applicant has withdrawn the application mentioned in section 183(1).

Subsection (1ZA) applies where a local housing authority has concluded their inquiries under section 184 and decided that an applicant does not have a priority need. That is the situation that applies here.

Subsection (1ZA) applies where a local housing authority has concluded their inquiries under section 184 and decided that an applicant does not have a priority need. That is the situation that applies here.  Subsection (1ZA) is predicated on a decision having been made under section 184, but that is not identified as sufficient of itself to bring the duty to an end. It is only a threshold criterion for what then follows.

Subsection 1ZA provided two ways for D to discharge their duty;

 (1ZA)(a)  applies where the local housing authority decide that they do not owe the applicant a duty under section 189B(2). If an authority reaches that decision, the interim duty under section 188(1) comes to an end when the authority “notify the applicant of that decision”. What needs to be notified to the applicant to bring the interim duty to an end under subsection (1ZA)(a) is the decision that the authority have decided that they do not owe the applicant a duty under section 189B(2).

In this case, the interim duty did not come to an end under this provision, therefore considering how ‘notice’ was given, was purely academic.

The second way of bringing the duty to an end for a person that the authority decides is not in priority need is set out in subsection (1ZA)(b).

If a local housing authority has determined that a person is not in priority need – which must be the case for section 188(1ZA) to apply – the authority will be aware that they will not owe that person a duty under section 190 or section 193 when the initial duty under section 189B(2) comes to an end.

In this situation, section 188(1ZA)(b) enables a local housing authority to bring the interim accommodation duty under section 188(1) to end.

This can be done even where the duty under section 189B(2) to help the applicant to secure accommodation continues. But in order to bring the interim duty under section 188(1) to an end, the local housing authority is required to notify the applicant that it has decided that when its (different) duty under section 189B(2) comes to an end, it will not owe that applicant a duty under section 190 or section 193 of the 1996 Act.

Where section 188(2A) does not apply (which it does not in this case), the word “Otherwise” at the beginning of section 188(3) means that the cessation of the interim duty is governed by section 188(3).

Section 188(3) identifies that the duty under section 188 comes to an end in accordance with subsections (1ZA) to (1A), regardless of any review requested by the applicant under section 202. This means it is necessary to turn to those subsections to understand when and how the duty is brought to an end, and section 188(1ZA) in particular in this case.

The second way of bringing the duty to an end for a person that the authority decides is not in priority need is set out in subsection (1ZA)(b). It applies in any other case not covered by (1ZA)(a). That is clear from the use of the word “otherwise” with which subsection (1ZA)(b) begins. The subsection continues by providing for the duty to come to an end “upon the authority notifying the applicant of their decision that, upon the duty under section 189B(2) coming to an end, they do not owe the applicant any duty under section 190 or 193.”

The language here is less simple than in subsection (1ZA)(a). The duty is brought to an end if the authority notify the applicant of the “decision” identified in subsection (1ZA)(b).

“On analysis, that requirement reflects the general logic of the statutory scheme as amended. The duties under section 190 or 193 of the 1996 Act are duties that are only owed by a local housing authority after its duties under section 189B(2) come to an end. Those are also duties which only apply to a person “in priority need”.

If a local housing authority has determined that a person is not in priority need – which must be the case for section 188(1ZA) to apply – the authority will know that they will not owe that person a duty under section 190 or section 193 when the initial duty under section 189B(2) comes to an end. In this situation, section 188(1ZA)(b) also enables a local housing authority to bring the interim accommodation duty under section 188(1) to end. This can be done even where the duty under section 189B(2) to help the applicant to secure accommodation continues. But in order to bring the interim duty under section 188(1) to an end, the local housing authority is required to notify the applicant that it has decided that when its (different) duty under section 189B(2) comes to an end, it will not owe that applicant a duty under section 190 or section 193 of the 1996 Act.

It was decided that the letter from D did not provide the type of notification set out in subsection (1ZA)(b). It did not comply with the notification requirement set out in section 188(1ZA)(b)  – it failed to inform the applicant of a decision that when the authority’s section 189B(2) duty comes to end, the local authority would not owe him a duty to provide him with accommodation under section 190 or section 193 of the 1996 Act.

“Section 188(3) in this original form therefore provided for the cessation of the interim duty on notification of the authority’s “decision” to the applicant. Although not explicit, I assume that this was a reference to the authority’s decision under section 184(3) of the 1988 Act. On this basis, a letter of the type that the Defendant sent to the Claimant on 5 October 2019 would have brought the Defendant’s interim duty to the Claimant if section 188(3) had remained in its original form. The claimant’s barrister positively relied upon this to emphasise the change now made to the statutory scheme by the 2017 Act. His contention was that the amendments to section 188 by the 2017 mean that a letter in that form notifying an application of a decision under section 184(3) of the 1996 Act is no longer sufficient.”

The letter therefore may have been sufficient to have brought the interim duty to an end under section 188(3) when it was first enacted; however it had since been amended. Therefore the letter was not sufficient notice to bring the duty to an end under section 188(3) in that amended form. That requires notification by the local housing authority of the specific decision prescribed in subsection (1ZA)(b).

The Court did not consider it necessary or appropriate to grant relief beyond a declaration reflecting the fact that the letter did not bring the D’s duty to an end.

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