AA, R (on the application of) v London Borough of Waltham Forest [2025] EWHC 1625 (Admin)

[2025] EWHC 1625 (Admin)Case No AC-2024-LON-003862
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 July 2025
Before
DEPUTY HIGH COURT JUDGE SUSIE ALEGRE
Between
THE KINGClaimantLONDON BOROUGH OF WALTHAM FORESTDefendant
Lindsay Johnson (instructed by Miles and Partners) for ClaimantMatt Hutchings KC and Michael Mullin (instructed by In house legal team) for DefendantHearing Hearing dates: 5 June 2025
Approved JudgmentThis judgment was handed down remotely at 2pm on 3 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................DEPUTY HIGH COURT JUDGE SUSIE ALEGRE

Deputy High Court Judge Susie Alegre :

[1]This is a claim for judicial review of a Housing Needs Assessment and Personal Housing Plan (HNAPHP) prepared by the Defendant council, Waltham Forest, for the Claimant, AA in August 2024. It is the second judicial review claim brought in relation to the Defendant’s alleged failures to fulfil their duties under s.189A of the Housing Act 1996, the first having been compromised by consent on 28 June 2024.[2]In the hearing before me, AA was represented by Mr Johnson and the London Borough of Waltham Forest was represented by Mr Hutchings KC and Mr Mullin.

Background

[3]The claimant, AA is a 28-year old woman from Yemen, who was granted refugee status in November 2023. She has a traumatic history of sexual assault including rape and domestic violence and has a diagnosis of Complex Post Traumatic Stress Disorder, for which she receives regular therapy sessions.[4]Following the grant of refugee status, she was evicted from the accommodation provided to her by the Home Office and was supported by a charity to make an application as homeless on 26 January 2024. That same day, the Defendant, notified her that it was satisfied that she was homeless and eligible for assistance and that she was owed the initial duty under section 189B of the Housing Act 1996. She was referred by the Defendant to the Single Homeless Prevention Service (SHP) “who have been contracted by the Council to assist applicants to draw up a PHP”.[5]A Housing Needs Assessment combined with a Personal Housing Plan (HNAPHP) was prepared on 22 March 2024 by Amy Culliford of SHP. On 21 May 2024, the Claimant sent a letter seeking to challenge the failure to carry out a lawful assessment of the claimant’s circumstances and prepare a lawful PHP. On 31 May 2024, the Defendant provided AA with temporary accommodation in a Travelodge. Her solicitors contacted the Defendant with concerns that the accommodation was unsuitable.[6]On 11 June, the Claimant filed her first claim for judicial review, challenging the failure to provide her with suitable accommodation and the failure to complete a lawful PHP. Those proceedings were withdrawn by consent on 28 June 2024 after the Defendant had accepted that it owed the main housing duty to AA, issued a further HNAPHP dated 11 June 2024 and ultimately secured her self-contained temporary accommodation in performance of that duty on 19 June 2024.[7]Still dissatisfied with the second HNAPHP, a pre-action letter was sent on 11 July 2024, requesting a revision. The letter referred to the email dated 5 June 2024 that SHP had sent to the Claimant and highlighted that the existing PHP did not record her need for “self-contained accommodation, not in the private sector, located in borough”.[8]On 25 July, the Defendant re-assessed the circumstances of the claimant’s case and prepared another HNAPHP. That plan stated that the Decision Maker “has not been provided with any substantial evidence as to how and why a suitable, self-contained, PRS accommodation will be in anyway detrimental to yourself”. The email from SHP was dismissed on the basis that “any assessment made by SHP in the past for you, will not be binding on WF Council as it carries out its own assessments and obtains advice from its own Medical Advisers”.[9]The claimant’s solicitor wrote to the defendant highlighting that the new HNAPHP was still inadequate as it did not clearly identify that she needed to live in borough and that private rented sector accommodation was not suitable for her. They requested a revision of the HNAPHP to take account of these points.[10]A revised HNAPHP was prepared on 22 August 2024. The assessment of housing need was updated to record that any private rented sector accommodation could be secured with reasonable adjustments to ensure that it was suitable for the claimant and that the defendant’s temporary accommodation resident support team could provide support to the claimant in the initial period of a new tenancy. The new assessment repeated that the defendant was not bound by any decision of SHP and noted the medical evidence provided by the claimant. This is the HNAPHP that is the subject of these proceedings.[11]The claimant was given advice on how to apply for the defendant’s housing register and was told to register with a website to bid for country-wide accommodation. She was told that she had been placed in Zone A (i.e. that she requires in borough accommodation), in order to continue to enable her to access essential services and support.[12]On 3 September 2024 the claimant’s solicitor emailed the Defendant again to say that the latest HNAPHP had not addressed the issues previously identified, in particular why the claimant was deemed suitable for private rented accommodation.[13]The defendant’s solicitor replied stating that all of the identified issues had been addressed, in particular:a. The claimant had been identified as needing in-borough accommodation (Zone A);b. An updated PHP had been provided.c. She had been advised on how to register for Part 6 accommodation.d. The recommendation of SHP had not been accepted and the reasons for not doing so had been provided in the PHP.[14]A subsequent email set out comments from SHP as to why they discharged the Claimant from their service. Following that email, the claimant’s solicitor made a Freedom of Information Act request as to the relationship between the defendant and SHP.[15]The claim now before me relates to this last HNAPHP and was issued on 25 November 2024. Permission was granted by David Pittaway KC, sitting as a Deputy Judge of the High Court, on 4 March 2025 on all grounds. The detailed grounds for defence raised an additional broader issue relating to the availability of a suitable alternative remedy.

The issues

[16]The claim before me raises four discrete issues: a) Does the reviews and appeals process contained in Part 7, Housing Act 1996 provide a suitable alternative remedy to rectify alleged errors in the performance of the assessment and planning duties in section 189A, Housing Act 1996? b) Did the decision-maker fail to have regard, or adequate regard, to the email dated 5 June 2024 from Ms Culliford when making the assessment of the circumstances of the Claimant’s case under section 189A, Housing Act 1996? c) Did the Defendant fail to discharge its duty of inquiry when assessing the circumstances of the claimant’s case and producing a written plan under section 189A, Housing Act 1996? d) Are steps to be taken by a local housing authority to secure social housing for the homeless applicant within the scope of section 189A(4)(b) and (6)(c), Housing Act 1996?[17]The first issue relating to a suitable alternative remedy was referred to, during the hearing, as “the macro issue” while the remaining three issues were referred to as “the micro issues”. I will adopt that terminology and deal with the macro issue first.

Applicable Law

[18]The main arguments in this case turn on the application of the requirements imposed on local housing authorities in relation to needs assessments and personal housing plans for housing provision under Part 7 of the 1996 Act and the ways these fit within the legislative scheme in terms of remedies. In this case, the Housing Needs Assessment (HNA) and the Personal Housing Plan (PHP) are contained in a single document which is referred to as the HNAPHP in this judgment.[19]The duty to provide a HNA and a PHP arises from Section 189A of the 1996 Act: 189A Assessments and personalised plan(1) If the local housing authority are satisfied that an applicant is— (a) homeless or threatened with homelessness, and (b) eligible for assistance, the authority must make an assessment of the applicant's case.(2) The authority's assessment of the applicant's case must include an assessment of— (a) the circumstances that caused the applicant to become homeless or threatened with homelessness, (b) the housing needs of the applicant including, in particular, what accommodation would be suitable for the applicant and any persons with whom the applicant resides or might reasonably be expected to reside (“other relevant persons”), and (c) what support would be necessary for the applicant and any other relevant persons to be able to have and retain suitable accommodation.(3) The authority must notify the applicant, in writing, of the assessment that the authority make.(4) After the assessment has been made, the authority must try to agree with the applicant— (a) any steps the applicant is to be required to take for the purposes of securing that the applicant and any other relevant persons have and are able to retain suitable accommodation, and (b) the steps the authority are to take under this Part for those purposes.(5) If the authority and the applicant reach an agreement, the authority must record it in writing.(6) If the authority and the applicant cannot reach an agreement, the authority must record in writing— (a) why they could not agree, (b) any steps the authority consider it would be reasonable to require the applicant to take for the purposes mentioned in subsection (4)(a), and (c) the steps the authority are to take under this Part for those purposes.(7) The authority may include in a written record produced under subsection (5) or (6) any advice for the applicant that the authority consider appropriate (including any steps the authority consider it would be a good idea for the applicant to take but which the applicant should not be required to take).(8) The authority must give to the applicant a copy of any written record produced under subsection (5) or (6).(9) Until such time as the authority consider that they owe the applicant no duty under any of the following sections of this Part, the authority must keep under review— (a) their assessment of the applicant's case, and (b) the appropriateness of any agreement reached under subsection (4) or steps recorded under subsection (6)(b) or (c).(10) If— (a) the authority's assessment of any of the matters mentioned in subsection (2) changes, or (b) the authority's assessment of the applicant's case otherwise changes such that the authority consider it appropriate to do so, the authority must notify the applicant, in writing, of how their assessment of the applicant's case has changed (whether by providing the applicant with a revised written assessment or otherwise).(11) If the authority consider that any agreement reached under subsection (4) or any step recorded under subsection (6) (b) or (c) is no longer appropriate— (a) the authority must notify the applicant, in writing, that they consider the agreement or step is no longer appropriate, (b) any failure, after the notification is given, to take a step that was agreed to in the agreement or recorded under subsection (6)(b) or (c) is to be disregarded for the purposes of this Part, and (c) subsections (4) to (8) apply as they applied after the assessment was made.(12) A notification under this section or a copy of any written record produced under subsection (5) or (6), if not received by the applicant, is to be treated as having been given to the applicant if it is made available at the authority's office for a reasonable period for collection by or on behalf of the applicant.[20]The Housing Act provides a remedy of review of decisions made by housing authorities in s.202: Right to request review of decision (1)An applicant has the right to request a review of— (a)any decision of a local housing authority as to his eligibility for assistance, (b)any decision of a local housing authority as to what duty (if any) is owed to him under sections 189B to 193C and 195... (duties to persons found to be homeless or threatened with homelessness), (ba)any decision of a local housing authority— (i)as to the steps they are to take under subsection (2) of section 189B, or (ii)to give notice under subsection (5) of that section bringing to an end their duty to the applicant under subsection (2) of that section, (bb)any decision of a local housing authority to give notice to the applicant under section 193B(2) (notice given to those who deliberately and unreasonably refuse to co-operate), (bc)any decision of a local housing authority— (i)as to the steps they are to take under subsection (2) of section 195, or (ii)to give notice under subsection (5) of that section bringing to an end their duty to the applicant under subsection (2) of that section,] (c)any decision of a local housing authority to notify another authority under section 198(1) (referral of cases), (d)any decision under section 198(5) whether the conditions are met for the referral of his case, (e)any decision under section 200(3) or (4) (decision as to duty owed to applicant whose case is considered for referral or referred), ... (f)any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e) or as to the suitability of accommodation offered to him as mentioned in section 193(7)], ... (g)any decision of a local housing authority as to the suitability of accommodation offered to him by way of a private rented sector offer (within the meaning of section 193), or (h)any decision of a local housing authority 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 or 193C). (1A)An applicant who is offered accommodation as mentioned in section 193(5), (7) or (7AA) may under subsection (1)(f) or (as the case may be) (g) request a review of the suitability of the accommodation offered to him whether or not he has accepted the offer. (1B)An applicant may, under subsection (1)(h), request a review of the suitability of the accommodation offered whether or not the applicant has accepted the offer.] (2)There is no right to request a review of the decision reached on an earlier review. (3)A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority’s decision or such longer period as the authority may in writing allow. (4)On a request being duly made to them, the authority or authorities concerned shall review their decision.[21]That review can be appealed by virtue of s.204: Right of appeal to county court on point of law. (1)If an applicant who has requested a review under section 202— (a)is dissatisfied with the decision on the review, or (b)is not notified of the decision on the review within the time prescribed under section 203, he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.

Caselaw

[22]The courts have considered several challenges to the adequacy of HNAs and PHPs under s.189A to which I was referred. The s.189A duties were described as “important” by Clive Sheldon QC in XY v LB Haringey [2019] EWHC 2276 (Admin) at [51].[23]In UO v Redbridge LBC [2025] HLR 2 at [44] Dexter Dias KC sitting as a Deputy High Court

Judge (as he then was) reiterated principles set out in earlier cases:

“The assessment informs any decision on suitability of accommodation. It must address the needs that provide the "nuts and bolts" for any offer of accommodation (R. (on the application of ZK) v Havering LBC [2022] EWHC 1854 (Admin) ("ZK"); [2022] H.L.R. 47; R. (on the application of YR) v Lambeth LBC [2022] EWHC2813(Admin) at para 81).”
[24]In R (ZK) v Havering LBC [2022] HLR 7, I noted that “there is an important distinction to be made between an applicant’s “needs” and an applicant’s “wishes” [42].[25]Akhtar v Birmingham CC [2011] HLR 28 [46] and [48] and Alibkhiet v Brent LBC [2019] HLR 15 [82]-[86] note that reasons are not required to be given for decisions under Part 7.

Suitable Alternative Remedy – The Macro Issue

[26]The first question for me relates to the applicability of the suitable alternative remedy principle to this case.[27]The principle was set out by Sales LJ in the case of R(on the application of Glencore UK Limited) v HMRC [2017] EWCA Civ 1716 [54]-56]:
“54. In order to evaluate these submissions, it is necessary to consider the basis for the suitable alternative remedy principle. The principle does not apply as the result of any statutory provision to oust the jurisdiction of the High Court on judicial review. In this case the High Court (and hence this court) has full jurisdiction to review the lawfulness of action by the Designated Officer and by HMRC. The question is whether the court should exercise its discretion to refuse to proceed to judicial review (as the judge did at the permission stage) or to grant relief under judicial review at a substantive hearing according to the established principle governing the exercise of its discretion where there is a suitable alternative remedy. 55. In my view, the principle is based on the fact that judicial review in the High Court is ordinarily a remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective. However, since it is a matter of discretion for the court, where it is clear that a public authority is acting in defiance of the rule of law the High Court will be prepared to exercise its jurisdiction then and there without waiting for some other remedial process to take its course. Also, in considering what should be taken to qualify as a suitable alternative remedy, the court should have regard to the provision which Parliament has made to cater for the usual sort of case in terms of the procedures and remedies which have been established to deal with it. If Parliament has made it clear by its legislation that a particular sort of procedure or remedy is in its view appropriate to deal with a standard case, the court should be slow to conclude in its discretion that the public interest is so pressing that it ought to intervene to exercise its judicial review function along with or instead of that statutory procedure. But of course it is possible that instances of unlawfulness will arise which are not of that standard description, in which case the availability of such a statutory procedure will be less significant as a factor. 56. Treating judicial review in ordinary circumstances as a remedy of last resort fulfils a number of objectives. It ensures the courts give priority to statutory procedures as laid down by Parliament, respecting Parliament’s judgment about what procedures are appropriate for particular contexts. It avoids expensive duplication of the effort which may be required if two sets of procedures are followed in relation to the same underlying subject matter. It minimises the potential for judicial review to be used to disrupt the smooth operation of statutory procedures which may be adequate to meet the justice of the case. It promotes proportionate allocation of judicial resources for dispute resolution and saves the High Court from undue pressure of work so that it remains available to provide speedy relief in other judicial review cases in fulfilment of its role as protector of the rule of law, where its intervention really is required.”

The Arguments

[28]Mr Hutchings, for the Defendant, argues that, if and when a private rented sector accommodation offer (PRSO) is made, the local authority will have to make a fresh decision satisfying itself that the particular accommodation offered is suitable pursuant to s.193(7F) (“suitability decision”). This will create a right to request a review of the PRSO pursuant to s.202(1)(b) and (g). If that review is unsuccessful, there is the right to appeal the review decision to the County Court on a point of law pursuant to s.204(1). This, he says, provides the claimant with a suitable alternative remedy, albeit one that is not immediately available to her.[29]Mr Hutchings says that Parliament did not intend to introduce an unrestricted right to challenge assessments under s.189A HA1996 in the High Court. In essence, he says that the proper approach is to wait for a reviewable PRSO in all but urgent cases. This, he says, provides a suitable alternative remedy that reflects the will of Parliament and follows the principles set out in Glencore by ensuring that judicial review is the ‘remedy of last resort’ in cases under the Housing Act.[30]Mr. Johnson, for the claimant, says, in essence, that there is no such right to review or appeal that applies to s.189A therefore there is, in fact, no suitable alternative remedy in cases such as this. Mr Johnson stressed that the body of caselaw in the administrative court challenging HNAs and PHPs would indicate that judicial review is the appropriate remedy to address the issues in this case. To require a claimant to wait for an offer would be to create a legal vacuum with no public law accountability mechanism.

Analysis

[31]The suggestion that judicial review challenges to the HNA and/or PHP under s.189A are not appropriate because there is a suitable alternative remedy under sections 202 and 204 of the HA 1996 is novel and speculative. Mr Hutchings accepted at the hearing that the argument has not been made before, though he did not accept my suggestion that this might be because it is essentially unarguable. Despite extensive submissions, I was not ultimately persuaded by his arguments for the following reasons.[32]As Lewison LJ pointed out in the recent case of Norton v Haringey [2025] EWCA Civ 746 at [47]:
“The starting point is the overall structure of this Part of the 1996 Act. As is shown by sections 189B, 190, and 195, when Parliament wished to cross-refer to a section 189A assessment it did so.”
[33]The statute is explicit about what is covered by the review provided for in s.202 and the subsequent appeal by way of s.204. It does not, anywhere, make reference to s.189A. On the face of the statute, therefore, the review and appeal process which it is suggested provides a suitable alternative remedy, does not apply to circumstances such as this where it is the HNAPHP that is challenged rather than the suitability of an offer of accommodation.[34]The review and appeal remedies under s.202 and s.204 have been in place since the Homelessness Reduction Act of 2017. It has not, in the years since, been suggested that they should provide a suitable alternative remedy in cases challenging HNAs and/or PHPs under s.189A. Indeed, it can be inferred from the caselaw around challenges to HNAs and PHPs that the suitable alternative remedy would not be available in cases such as this.[35]In the case of UO v London Borough of Redbridge [2023] EWHC 1355 (Admin), the first two grounds related to s.189A while grounds 3 and 4 could have been subject to review under s.202. Lane J observed, in that case at [130]:
“I am in no doubt that, in the particular circumstances of this case I should not treat the availability of a statutory review under section 202 and/or an appeal to the County Court under section 204 of the 1996 Act as requiring grounds 3 and 4 to be dismissed or as justifying withholding any remedy in respect of the unlawfulness of the defendant's suitability decisions.”
[36]It would seem, therefore, that even in cases where some grounds might have a suitable alternative remedy while others relating to s.189A would not, the Court has found that, rather than rejecting all grounds on that basis, it should rather consider all grounds together at the judicial review.[37]I have considered the principles on suitable alternative remedies set out in Glencore [55], however the stage of proceedings and the relevance of the purported suitable alternative remedy in this case are completely different to the situation in Glencore. There, the statutory review process was available with the potential to appeal to the First Tier Tribunal (FTT) at the end of the review. It was just a case of the Claimant waiting for the review process to take its course. In these proceedings, in the absence of an offer of accommodation, there is no review process that can be triggered at this stage. While in Glencore, the applicant would have to wait for the conclusion of the review process in a defined time limit, in this case, the Claimant might never have the opportunity for review if an offer of accommodation is not made.[38]In my view, the principles in Glencore do not apply here because there is no statutory scheme in place to challenge a HNA or a PHP under s.189A. In any event, Glencore makes it clear that the High Court retains jurisdiction even if a suitable alternative remedy did exist: “since it is a matter of discretion for the court, where it is clear that a public authority is acting in defiance of the rule of law the High Court will be prepared to exercise its jurisdiction then and there without waiting for some other remedial process to take its course.” [55][39]From a practical perspective, the point of this claim is to ensure that the HNA and PHP contribute effectively to the desired outcome of an offer of suitable accommodation. The previous JR was compromised on 28 June 2024 at a time when it appeared that things were moving in that direction with an updated HNAPHP and new temporary accommodation. However, almost a year on from that, and ten months on from the latest HNAPHP that is the subject of this challenge, no offer, suitable or otherwise, has been made to trigger that suitable alternative remedy. Taking away the potential for challenge by judicial review in such cases would leave people like the claimant with no effective remedy unless and until the local authority makes a reviewable offer. That is not a legally sustainable proposition.[40]Mr Hutchings referred at the hearing to the potential for judicial review of the HNAPHP under s189A to lead to a situation where claimants could “party like it’s 1995” (i.e. prior to the enactment of Part 7 of the Housing Act 1996). The scope for judicial review does not, however, give claimants carte blanche to make spurious or vexatious claims.There is a filter for judicial review, by way of the permission stage. Not every challenge under s189A will have an arguable ground for judicial review with a realistic prospect of success. Permission may also be refused if it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred (see Administrative Court Guide 2024 9.1.3 and 9.1.4 and Section 31(3C)-(3F) of the Senior Courts Act 1981). If a claim does fulfil the criteria for permission, it would be improper for the court to create an artificial public law vacuum by excluding the HNAPHP stage from judicial review proceedings in general as is suggested by the Defendant.[41]I can understand why a local authority might wish that the statute did provide such an alternative remedy in these cases. However, wishing that the law was so does not make it so. The legislation is explicit about what is covered by the review under s.202 and appeal under s.204. It does not include s.189A assessment or planning. If there is a policy issue that needs to be addressed, that may, in the future be dealt with by legislation. It is not for me to unilaterally expand the existing law by excessive statutory interpretation in such a way.[42]For these reasons, I conclude that there is no suitable alternative remedy to challenge the assessment or plan drawn up under s.189A in the absence of an offer of accommodation. There is, therefore, no suitable alternative remedy in this case.

The Micro Issues

[43]The micro issues relate more closely to the circumstances of this case rather than to questions of legal principle. They turn on the interpretation of the challenged HNAPHP and relevant correspondence.[44]The email from Ms Culliford at SHP dated 5 June 2024 reads:
“After careful consideration, we have decided to close your case at the Single Homeless Project. This decision is based on the fact that we believe your support and housing needs can't be adequately met through private rented sector and need to be re assed and due to your refusal to go to branches twice. I am returning your case to the council, who will continue to provide support on their end. Any questions, please let me know”
Any questions, please let me know”[45]A further email sent by Ms Culliford on 15 August 2024 in response to a query from the Decision Maker asking for “an explanation for why PRS may not be suitable for this applicant” sent by email on the same day reads:
“I completed the personal housing plan with both AA and her support worker from Forest Night Shelter. During the PHP call, we agreed that I would provide options for both supported accommodation and private rented housing, which I promptly shared. The support worker expressed concerns that AA may not be ready for private rented accommodation given her lack of experience living independently, her history as a survivor of domestic abuse, and her ongoing struggles with PTSD and anxiety, so it was suggested/decided that supported accommodation was deemed more suitable at this time. The only supported accommodation option AA seemed open to considering was Branches, and she was placed on the waiting list. However, as she was waiting to be assessed, I provided her with options for private rented housing. AA attended one viewing, in which she declined, because she believed the bus stop was too far away and she wouldn't feel safe and bills were not included. Then she changed her mind about living in supported accommodation, because she decided wouldn't meet her needs. She said she wanted to wait for Waltham Forest to consider her as priority needs (as stated in the attached email) I have also attached email correspondence, which showed I did send her properties to view, where she didn't respond and where she changed her mind about Branches. As she was not interested in private rented accommodation or supported accommodation, there was little that we could do for her, so her case was closed with SHP. If AA has since reconsidered her decision and feels she is now in a more stable position to explore private rented housing or revisit the possibility of Branches, please feel free to re-refer her. If you need anymore information, I have updated Jigsaw and if you require any more please don't hestiate [sic] to contact me”
[46]The HNAPHP dated 22 August 2024 reads:
“HOUSING NEEDS and TYPE OF ACCOMMODATION YOUR HOUSEHOLD REQUIRES […] Private Sector Rented (PRS) Accommodation: Your solicitors have informed the authority that a PRS accommodation will not be suitable, however the authority has not been provided with any substantial evidence as to how and why a suitable, self-contained, PRS accommodation will be in anyway detrimental to yourself. The authority is able to secure PRS accommodation with reasonable adjustments (if required) for those groups of applicants that are vulnerable and this is done in compliance with the authority's Public Sector Equality duty. If the authority was to secure alternative PRS, accommodation, the authority will ensure that accommodation has reasonable adjustments so that it is suitable for your needs. The authority's Temporary Accommodation Resident Support team (TARS) provides support to applicants who are placed in PRS accommodation. As well as the support offered to you in securing suitable accommodation, the authority's TARS teams can provide you with resettlement support to assist you in the initial period of your new tenancy. TARS can provide advice and support to locate local services including GPs, as well as provide you with advice and guidance on claims on your claim for housing costs and council tax support, and also advise you on low-cost furniture options or grants for your new home. You should be made aware that when you were being assisted by SHP (Single Homeless Project) initially, it was because you were a single, homeless person with no priority need. Please be advised that the SHP is not a part of Waltham Forest Council, SHP is an independent charity organisation which is a commissioned service and any assessment made by SHP in the past for you, will not be binding on WF Council as it carries out its own assessments and obtains advice from its own Medical Advisers. The authority helps SHP source housing outcomes for single, homeless people. The authority has not and does not delegate any statutory decision making to SHP. After the authority considered your medical evidence, from Dr Ottisova, it found that you are in priority need and this is when your matter was referred from SHP to the Council's homelessness team. The authority has since accepted the main housing duty towards you (on 17.6.2024).”
Did the Decision Maker have regard to the email of 5 June 2024 in the HNA? Arguments[47]Mr Johnson says, in summary, that the failure of the Decision Maker to reflect the unsuitability of PRS accommodation in the HNA shows that they did not have regard, or certainly not adequate regard to the email from SHP.[48]Mr Hutchings argues that, on a fair reading of the HNA, it is clear that the Decision Maker did have regard to the email but decided how to deal with it appropriately in the HNA. He says that the question of whether he had ‘adequate’ regard to the email was not properly pleaded and argues that there is no duty to give reasons in an HNA, the question is one of rationality.

Analysis

[49]It appears to me that the Decision Maker did have regard to the email and accorded it the weight he thought it was due in light of the wider circumstances. His reference to “any assessment made by SHP in the past for you” is a clear indication that he did have regard to the assessment in the email but decided not to give it significant weight in his assessment. I can understand that the claimant may not like his conclusion that there could be private sector rental accommodation that might be suitable for her with reasonable adjustments. However, that does not make his conclusion irrational and the question for me is one of rationality, not whether I might have come to a different conclusion.[50]The HNAPHP makes reference to the lack of “substantial evidence” as to the reasons how and why private sector rental accommodation would be inappropriate. Mr Johnson suggests that this is a sign that the Decision Maker has not paid due regard to the email. In my view, however, it is a fair assessment of the email which consists of one line of correspondence. The email is a bald statement rather than ‘substantial evidence’ of the “reasons how and why” such accommodation would not be suitable.[51]Even taking account of Ms Culliford’s email of 15 August 2024 which gives further information as to the background of the assessment, I do not consider this to amount to “substantial evidence” of the reasons how and why PRS would not be suitable. It is an indication of the fact that the claimant was not interested in PRS which is not in dispute. That email does makes reference to the issues raised by her support worker as to why she may not be ready for private rented accommodation including “lack of experience living independently, her history as a survivor of domestic abuse, and her ongoing struggles with PTSD and anxiety.” But, while this provides some background as to the reasons, I do not consider it amounts to “substantial evidence” of the reasons and therefore I do not think it is unreasonable or irrational for the Decision Maker to assert that they have not received “substantial evidence”.[52]A reasonable housing officer would likely have insights into the reasons why some PRS accommodation could be unsuitable for a vulnerable person such as the claimant. But they would also have an understanding of the kind of reasonable accommodations that could be made to address reasons of the sort set out in the SHP email of 15 August 2024.[53]The challenge here is one of rationality. Looking at the emails and the HNAPHP against the wider background, I do not find that the assessment made by the Decision Maker meets the test of Wednesbury unreasonableness in this case. It appears to be possible for a reasonable decision maker to take account of the reasons why PRS might be unsuitable without excluding the possibility that some PRS could be suitable with reasonable adjustments. Did the Defendant breach its duty of inquiry in the HNA? Arguments

Did the Defendant breach its duty of inquiry in the HNA?

[54]Mr Johnson says that the Decision Maker failed to make sufficient inquiries into the Claimant’s ability to maintain private sector accommodation once he was on notice of the need to do so.[55]He referred me to R (YR) v Lambeth LBC [2022] EWHC 2813, [2023] HLR 16, at [88(iv)] in which Paul Bowen KC sitting as a Deputy

Judge of the High Court refers to the duty of inquiry in the context of a HNA:

“The Defendant was under a Tameside duty to make further inquiries: see paragraphs 86-87, above. In the absence of any reasoned decision or other evidence to show that those inquiries have been carried out, the Court will infer that the duty has not been discharged, as in Nzolameso, [36]. Again, this situation was not contemplated in, and is distinguishable from, Alibkhiet, [82-86]. The reasonable inquiries that an authority is required to take as part of its assessment should be evident from the s. 189A assessment or housing plan, or at least should be evidenced on the housing file. They are not.”
[56]Mr Hutchings argues that, subject to a Wednesbury challenge it is for the public body and not the court to decide upon the manner and intensity of inquiry to be undertaken. The court should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision referring to R v Kensington and Chelsea RLBC, ex p. Bayani (1990) 22 HLR 406, p. 409 points (1) and (2); Cramp v Hastings BC [2005] HLR 48, 23 [58]; Ahamed [52] and YR [86]-87].[57]On the facts of the case, he says that the Decision Maker, in exercising his discretion as to the manner and intensity of inquiry, was entitled to take account of the fact that this was only a HNA rather than a suitability decision which would bring the main housing duty to an end.

Analysis

[58]The question of the extent of inquiries required in homelessness cases is a matter for the local authority. It is only in cases where it is ‘an obvious matter’ that the Decision Maker should have considered that it calls for further inquiry (as per Brooke LJ in Cramp v Hastings BC [2005] EWCA Civ 1005, at [14]). It seems to me that, in this case, the suitability of PRS as part of the assessment is such a matter and therefore there was a duty of further inquiry.[59]The obligation in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, at 1065 has been applied in the homelessness context to imply a duty to take such steps as are reasonable: see Abdikadir v Ealing LBC [2022] EWCA Civ 979, at [53].[60]It is clear, in this case, that the manager of the Decision Maker did inquire about the reasons why private sector rental accommodation could be unsuitable for the Claimant. He emailed SHP on 15 August 2024 asking for more information and reasons for the recommendation in the 5 June email. And she received the response from Ms Culliford the same day which provided further details. The question for me, then, is whether these were reasonable steps in the circumstances.[61]The duty of inquiry does not require the Decision Maker to conduct an extensive inquiry in the terms the Claimant asks for. In my view, taking account of the response from Ms Culliford and the information the Decision Maker would have more generally about the wider context of housing, it appears to me that the steps he took were reasonable in the circumstances and would ensure he had sufficient information for him to make a rational decision. It was ultimately for the Decision Maker to exercise his discretion as to the level of further inquiry required. On the facts, I cannot see that he exercised that discretion unreasonably. The claimant may not like the conclusions drawn from the further inquiry, but that does not mean the inquiry was, in itself, insufficient to fulfil the Tameside duty of inquiry.

Should the Defendant have included the steps to secure social housing in the PHP?

[62]The final micro issue relates to the steps that could, or should, have been included in the PHP.[63]S.189A(4)(b) and (6)(c) in Part 7 HA 1996 require the LHA to seek to agree/record in writing “the steps the authority are to take under this Part for those purposes”, namely: “securing that the applicant and any other relevant persons have and are able to retain suitable accommodation”.[64]Part 6 HA 1996 provides for the “allocation of housing accommodation”, i.e. social housing.

Arguments

[65]Mr Johnson says that the main housing duty under section 193(2) imposes an immediate and non-deferrable duty to secure that accommodation is available for an applicant’s occupation. That duty can be performed through the provision of temporary accommodation; there are no statutory restrictions on what form that accommodation can take, save for it being suitable for the applicant. The duty continues until it ceases in accordance with the terms of section 193 itself. The discharge of duty can only occur through the provision of accommodation where an applicant accepts a final offer of accommodation made under Part 6, accepts an assured tenancy from a private landlord or is made a suitable PRSO.[66]The claimant’s case is that, by identifying only one route to securing accommodation, by way of PRS accommodation in the PHP, the Defendant acted unlawfully because it fettered the wide discretion it has as to how it can secure suitable accommodation for the claimant that she can have and retain. Even if the PHP does not amount to a fetter on the broad discretion afforded to an authority, Mr Johnson says it is unlawful in the Wednesbury sense because it is perverse to knowingly exclude from consideration a mechanism identified by statute for resolving homelessness and limit an applicant to private rented sector accommodation.[67]Mr Hutchings argues that Part 6 and Part 7 HA 1996 are separate statutory schemes involving very different duties. Part 6 provides for a lawful allocation policy and its fair operation. Part 7 provides for the accommodation of homeless people. In essence, he says that the s.189A duty to provide a PHP cannot include steps that relate to the Part 6 duty of allocation of social housing.

Analysis

[68]While I accept that social housing allocation falls under Part 6 as Mr Hutchings has argued, the duty to secure suitable accommodation, of whatever kind, arises out of s.193(2) under Part 7. It is not logical to exclude the kinds of support that could be provided to secure allocation under Part 6 from the steps included in the PHP. This is because allocation of suitable accommodation under Part 6 is one of the routes to bringing the housing duty under Part 7 to an end. Therefore, steps to support the Claimant to secure allocation under Part 6 are, in effect, steps taken to discharge the duty under Part 7.[69]In cases such as the claimant’s where a person requires support from the Local Authority to apply for accommodation under Part 6, it would, therefore be unreasonable to exclude such support from the steps set out in the PHP under Part 7. In the circumstances I find that it was unreasonable for the defendant to exclude such support from the PHP alongside the steps related to private sector rental accommodation.

Conclusions

[70]For these reasons, I find that: a) There is no suitable alternative remedy to challenge an HNAPHP under s.189A of the Housing Act 1996; b) The application for judicial review is dismissed in relation to the alleged failure to consider the email from SHP in the HNA; c) The application for judicial review is dismissed in relation to the alleged failure to discharge the Tameside duty of inquiry; and d) The Defendant’s failure to include steps to support the Claimant in her application for allocation of social housing in the PHP was unreasonable.[71]The defendant should now, in accordance with this judgment, issue a fresh PHP under section 189A(6) of the Housing Act 1996.[72]The claimant attended the hearing before me and I want to stress that I understand the importance of these issues to her and recognise her difficult situation. What ultimately matters for the claimant to resolve these issues, is that she should be offered permanent suitable accommodation so that she can rebuild her life here. I hope that an offer of such accommodation will be forthcoming as soon as possible.

Costs

[73]I have considered written submissions on costs provided by the parties in response to the draft of this judgment.

Arguments on costs

[74]Mr Johnson’s primary position is that the claimant should have her costs consequent upon the court’s judgment because – “a. She is the successful party, having obtained the relief which she sought, i.e. a reconsideration of her PHP. b. The conduct of the defendant in(i) making these proceedings necessary, notwithstanding that previous proceedings were compromised,(ii) raising an issue which the court has found to be based on an argument that “is not a legally sustainable proposition” (§39), should be penalised in costs.”[75]In terms of the overall success, Mr Johnson says the claimant was successful overall and points to the relief sought by the claimant which was:(a) a mandatory order requiring the defendant to undertake an re-assessment (or review) of the circumstances of the claimant’s case and prepare a Personal Housing Plan or review of the same, and(b) a declaration that the defendant has acted unlawfully in (i) failing to undertake a lawful housing needs assessment; and, (ii) failing to prepare a lawful PHP.[76]Mr Hutchings for the defendant says that where the raising of issues or making allegations on which a successful party fails has caused a significant increase in the length or costs of the proceedings that party may be deprived of the whole or part of the costs, whether or not that party acted unreasonably or improperly in so doing (AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 W.L.R. 1507, CA, at 1523). Because the claimant failed on grounds relating to the HNA and only succeeded on ground (d) relating to the PHP, he says the claimant should not be granted a costs order in her favour. Instead, as a pragmatic solution, he suggests there should be no order for costs.

Conclusion on Costs

[77]The general rule contained in CPR 44.2(2) provides that the unsuccessful party should pay the successful party’s costs. In Kastor Navigation Co Ltd & Anor v AXA Global Risks (UK) Ltd & Ors [2004] EWCA Civ 277, Lord Rix noted at [143] that:
“It is trite to state but important to bear in mind that the rules prescribe the way in which the court's discretion as to costs should be exercised rather than any decision of this court on the facts of any particular case. The general rule is that the "unsuccessful party will be ordered to pay the costs of the successful party" (CPR 44.3 (2) (a)). Does this mean successful party on any particular issue or successful party in the litigation? As a matter of construction it must mean the latter. Where the rule refers to part of a case or a particular allegation or issue it says so.”
[78]While she was not successful on all grounds, I consider that the claimant was successful overall and is the successful party in the litigation. I do not find any of the points brought on behalf of the claimant to be unreasonable. The practical outcome and relief she sought, which is a new PHP which will hopefully ultimately lead to an offer of suitable accommodation, has been achieved by way of these proceedings.[79]In this case, the HNA and the PHP form part of the same document which is a living document. Almost 11 months on from the challenged HNAPHP, a review of the PHP which forms part of the overall document is, in effect, a review of the HNAPHP in this case regardless of my ruling on the grounds relating directly to the HNA aspect of the document. It is clear, in this case, that the claimant is the successful party overall and it would be artificial to consider costs on an issue basis in these circumstances.[80]I have also considered, in weighing up the arguments on costs, the defendant’s conduct in this case, in particular its heavy reliance on the defence of suitable alternative remedy which I have ruled was not legally sustainable. Without this argument, the hearing would have been significantly shorter, and the level of legal argument would have been much less. The defendant’s decision to run this “macro” defence as a way of bypassing the “micro-issues” has undoubtedly added to the costs burden and the complexity of the case.[81]The way in which this issue was raised suggests that the focus of the defendant was on the bigger picture rather than addressing the concrete issues raised in this claim as they relate to this individual claimant. Had it addressed the micro issues earlier, there might have been no need for a hearing at all. It is clear, from the fact that earlier proceedings were compromised, that the claimant was interested in practical outcomes, not in litigation for its own sake.[82]Taking all the above into account, I make an order of costs for the claimant as the successful party and order the defendant to pay the claimant’s solicitor the sum of £10,000 plus VAT on account of their costs, within 21 days.

Cited in 1 later judgment