Supreme Court to hear case on ending of section 193 Housing Act duty

The background to the case of Bano v London Borough of Waltham Forest is that on 13 December 2016, the appellant applied to the respondent council for assistance as a homeless person under Part 7 of the Housing Act 1996.

Waltham Forest accepted that it owed Mrs Bano the “main housing duty” under section 193 of the 1996 Act. This is a duty to provide temporary accommodation until such time as the duty is ended.

The council explained that this duty would come to an end if the appellant refused a “private rented sector offer”.

In May 2017, Waltham Forest arranged for the appellant to be provided with temporary accommodation in Newham.

On Thursday 11 June 2020, the local authority sent the appellant a private rented sector offer of a flat in Derby. It explained in the letter that the offer would discharge its main housing duty, whether the appellant accepted or refused the offer.

The appellant refused the offer and remained in occupation of the property in Newham.

On 19 August 2020, Waltham Forest sent a letter indicating that the appellant would have to leave the Newham property by 31 August 2020.

On 28 September 2020, the appellant requested that the council carry out a review of the suitability of the accommodation offered.

In a letter dated 7 October 2020, Waltham Forest refused this request because it had not been made in time.

In November 2022, the provider of the Newham property issued possession proceedings against the appellant.

The appellant wrote to the council seeking its agreement that the main housing duty had not ended, which the local authority refused to provide.

The appellant issued a claim for judicial review of Waltham Forest’s refusal on 5 September 2023. 

Dexter Dias KC, sitting as a deputy High Court judge, concluded that the council could not have ended its duty to accommodate the appellant because it never took a valid decision to do so.

He also held that the case turned on unusual factors which meant his decision would not open “floodgates” to cases at other councils, as Waltham Forest had warned.

However, Waltham Forest’s appeal to the Court of Appeal was allowed.

Newey LJ said the argument in the appeal focused on whether it had been open to the claimant to request a review in 2020 of the deficiency in the offer letter. The council argued that the claimant had two opportunities to request such a review.

He said legislation did not say an applicant must be told that the authority’s duty has terminated, and as section 193(7) of the 1996 Act was framed, there was 'automatic discharge’ where an offer of accommodation under Part 6 was refused.

There must similarly be ‘automatic discharge’ under section 193(7AA) where a private rented sector offer is refused or accepted provided that the applicant has been informed of the matters mentioned in section 193(7AB),the Court of Appeal judge said.

Newey LJ added that the High Court had been mistaken in considering that refusal of a private rented sector offer would bring a local housing authority’s duty under section 193 of the 1996 Act to an end only if and when the authority so decided.

“The better view, I think, is the duty ceases automatically on refusal,” he said. “Even supposing, however, that that is wrong, [the claimant] will, as it seems to me, have been entitled to request a review under section 202(1)(b) of the 1996 Act when she received the offer letter of 11 June 2020.

“In my view, therefore, [the claimant] was entitled to request a review in respect of the offer of 11 June 2020 not only under section 202(1)(g) of the 1996 Act (as regards suitability) but also under section 202(1)(b).”

The judge said a decision that such a duty has ceased is reviewable “even if only confirmatory of a prior automatic discharge”.

The claimant's ability to seek reviews meant she “had a remedy other than judicial review available to her”.

Newey LJ explained: “In the present case, it was clearly Parliament’s intention in enacting section 202 of the 1996 Act that challenges to decisions such as are identified in section 202(1) should be pursued by way of review and, if necessary, appeal to the County Court, not through judicial review.

“It is also noteworthy that Parliament thought it appropriate to require a request for a review of a decision to be made within 21 days after its notification unless the local housing authority allowed a longer period.

“In my view, it is not appropriate to allow [the claimant] to claim judicial review…she had available to her, but failed to invoke, the procedure (viz. review and appeal) which was meant to apply in relation to decisions as to whether a duty under section 193 of the 1996 Act was owed.”

The appellant appealed to the UKSC.

A three-justice panel of the Supreme Court comprising Lord Hodge, Lord Leggatt and Lady Rose granted permission for the appeal last month (25 June).