High Court issues mandatory order requiring council to review assessment of housing need of claimant

Alan Bates, sitting as a deputy judge of the High Court, said a mandatory order was needed to ensure the council promptly reviewed its assessment of claimant AN’s housing needs pursuant to section 189A of the Housing Act 1996.

He also made a declaration that the council failed to comply with its statutory duty to make a proper assessment of the AN’s housing needs in accordance with section 189A(2) of the Housing Act 1996, and so had also failed to comply with its duties arising in relation to AN’s daughter EB - who has special educational needs - under (i) section 11(2) of the Children Act 2004 and (ii) section 149 of the Equality Act 2010.

Commenting on the case, Joshua Jackson of Doughty Street Chambers, who appeared for AN, said: “The judgment is the latest in a growing body of case law clarifying and articulating local authorities’ important duty to assess homeless applicants housing needs under s.189A of the Housing Act 1996.

“It is the first judgment addressing the relationship between those duties and the public sector equality duty under s.149 of the Equality Act 2010.”

Mr Bates said: “It cannot be doubted that the London local authorities face a difficult task in carrying out their duties under Part VII, given the high level of demand for housing assistance and the scarcity of affordable rented accommodation.”

He said finite budgets meant London authorities had to disappoint many applicants over where they desired to live “even if this results in some degree of hardship for those individuals or their families”.

This though made it “all the more important that local authorities carry out proper and informed assessments of homeless persons' housing needs, as required by s.189A HA 1996 (as inserted by the Homelessness Reduction Act 2017)”

It was also important, Mr Bates noted, that where bed and breakfast is the only accommodation that can be offered to a family “this continues for no longer than necessary”.

Mr Bates found that Barking & Dagenham had made four assessments of AN’s and EB’s circumstances but all had been unlawful.

EB is aged seven and has autism spectrum disorder with impaired speech, and difficulties with communication, concentration and sensory processing.

She can become dysregulated when buses or trains are busy, and if EB's journey to school is overwhelming for her, it impairs her learning.

EB needs to move to a school more suited to support her needs and AN applied to be housed nearby.

Her first ground was that there was no reasoned assessment or identification of her core housing needs in any of the plans issued by the council.

A proper assessment would necessarily have included consideration of EB's housing needs, proximity to EB's school, and its accessibility by public transport, AN said.

She further argued the council failed to take reasonable steps to identify and assess her housing needs and that a series of discrete relevant considerations were absent from the plans.

The council argued that its latest assessment, known as the May Plan, was lawful and sufficient under s.189A HA 1996, s.11(2) CA 2004 and the PSED.

It said it had recognised a need for in-borough accommodation, even if the documents did not use the express language of need, and these demonstrated the council had assessed AN’s housing needs in terms of location and travel to school.

Mr Bates said he was “surprised by the [council’s] submission at the oral hearing that it had, in fact, determined that the claimant requires in-borough accommodation, and that the May Plan recorded this.

“The May Plan expressly advises the claimant to find out-of-borough accommodation.”

He found that none of the four plans made - with substantial overlapping content - was satisfactory.

AN though lost on a second ground that Barking & Dagenham’s temporary accommodation placement policy was unlawful as it misrepresented the law and authorised, approved or induced breaches of the 2003 Homelessness Order.

She said the policy stated only the council would endeavour to move families on from B&B accommodation within six weeks, whereas the 2003 Homelessness Order sets an obligation for this. AN and EB for part of the time were in B&B accommodation.

Mr Bates found that the policy was not unlawful as it did not purport to be a comprehensive and precise exposition of the law and – in the round – promoted compliance with the 2003 Homelessness Order.

Mark Smulian