Zahra Fatolahzadeh v London Borough of Barnet

The appellant’s submissions are founded on the contention that Barnet carried out no section 189A assessment of the appellant’s case. On that basis it is contended that it was at all material times unable to discharge its prevention duty under section 195(2). In support of that contention the appellant submits that the obligation to carry out a section 189A assessment logically precedes any possible decision on whether a duty is owed and, if it is, how that duty is to be discharged. The assessment must comply with all the requirements of section 189A(2). After the assessment has been made, the applicant must be notified of the authority’s assessment in writing and the authority must try to agree with the applicant what steps should be taken: see sections 189A(3) and (4). Although the assessment does not have to deal with and set out every need that an applicant might possibly have, it should set out the “key needs”, sometimes described as those that would provide the “nuts and bolts” for any offer of accommodation. Until the authority decides that it owes an applicant no duty under Part 7 of the Act, the assessment must be kept under review: see section 189A(9). A failure to carry out any (or any compliant) assessment may properly form the basis for judicial review proceedings, seeking to quash a purported assessment.

The appellant accepts (and asserts) that a local housing authority may discharge their housing functions under Part 7 of the Act by securing that suitable accommodation provided by them is available: see section 206(1) of the Act. That applies equally to an authority attempting to discharge its prevention duty under section 195(2) by securing that accommodation is available. However, it remains the appellant’s case that a failure properly to discharge the section 189A(2) obligation has the effect that an authority is not able lawfully to discharge the prevention duty. In oral submissions Mr Colville for the appellant accepted and asserted that the logical conclusion of his argument would be that, where an assessment was either absent or deficient, the provision of suitable accommodation could not amount to a lawful discharge of the authority’s prevention duty. In his words, “a failure to carry out an adequate housing needs assessment would invalidate a finding of suitability” whether or not the issue of suitability was raised as an issue for review and even if a comprehensive section 202 review concluded for unimpeachable reasons after considering all available evidence that the accommodation was in fact suitable.

Barnet submits that (as found by the Judge) it did assess the appellant’s housing needs, albeit that the assessment is not to be found in a single document. Subject only to the deficiency in the original reasons for the finding of suitability, which was remedied by the Review decision, Barnet submits that it substantially complied with its obligations under section 189A and continued to keep its assessment under suitable review even if there was no meeting to discuss the assessment on 21 October 2022. Having established the system of review pursuant to requests under section 202 of the Act, it cannot have been Parliament’s intention that an otherwise satisfactory review decision is invalidated by any and every prior deficiency in an authority’s section 189A assessment. Rather, a proper appreciation of the consequences of a deficiency should take as its starting point that the Act specifically contemplates that errors can be remedied by a review: this is implicit in regulation 7(2) of the Homelessness (Review Procedure) Regulations 2018, and see [26] of Abed. In the present appeal, the decision under review is the Review decision, which is not substantively challenged. It cannot have been Parliament’s intention that such a review decision is invalidated on the facts of the present case. The purpose of the section 189A duty is to ensure that advice and assistance given to an applicant is tailored to an applicant’s needs and to help them to find accommodation that is suitable for them. That is what happened in the present case.

In support of these submissions, Barnet draws attention to the fact that section 202 of the Act does not provide a right of review of a section 189A assessment or a PHP. Barnet submits that the proper route for challenging the validity of either or both would be by judicial review proceedings. Where, however, that is not done, the structure created by Parliament is for challenges to be to specific decisions of the types identified in section 202 of the Act. That provides a structured and proportionate framework of remedies which presupposes that decisions made after properly applying the review process will be valid, with the further protection of the right of appeal to the County Court on a point of law arising from the decision.

Barnet submits that there was a continuing process that gave substantial consideration to the appellant’s housing needs and to the other features mandated by section 189A(2); and it submits (correctly) that the appellant has not identified any need that went unassessed. Ultimately, Barnet relies upon the fact that suitable accommodation that met the appellant’s needs was identified by Barnet, which was offered to and accepted by the appellant.

The relevant provisions of Part VII of the Act are well known and do not need to be set out extensively again here. We are primarily concerned with sections 189A, 195 and 202. In briefest outline, the duty with which we are directly concerned is the prevention duty that is owed when a local housing authority is satisfied that an applicant is threatened with homelessness and eligible for assistance: section 195(1). The scope of the authority’s duty in cases of threatened homelessness such as the present is stated in section 195(2): “the authority must take reasonable steps to help the applicant to secure that accommodation does not cease to be available for the applicant’s occupation.” Other sections may be seen as ancillary to that duty, in the sense that they make provision affecting how the authority should go about discharging its prevention duty. For present purposes, the relevant provision is section 195(3), which lays down that “in deciding what steps they are to take [i.e. what steps must be taken because they are reasonable within the meaning of section 195(2)] the authority must have regard to their assessment of the applicant’s case under section 189A.”

The effect of section 189A(1) in a threatened homelessness case such as the present is that “the authority must make an assessment of the applicant’s case.” Section 189A(2) provides that the assessment must include an assessment of three specific features, though the authority is not precluded from considering others when assessing the applicant’s case. Put briefly, the three specific features are (a) the circumstances that caused the applicant to become threatened with homelessness, (b) the housing needs of the applicant, including what accommodation would be suitable for the applicant and 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.

The prevention duty may be discharged by attempting to secure the continuation of current accommodation; but it may also be discharged by the authority securing that suitable accommodation provided by the authority is available, or in other ways as outlined in section 206(1) of the Act.

Section 202 provides for an applicant to request a review of some but not all decisions that may be made by an authority in a homelessness or threatened homelessness case. For present purposes, the potentially relevant decisions of which an applicant threatened with homelessness may request a review pursuant to section 202(1) are (i) any decision of the authority as to what duty (if any) is owed to the applicant under section 195: section 202(1)(b); (ii) any decision of an authority as to the steps they are to take under section 195(2): section 202(1)(bc)(i); and (iii) any decision of a local authority as to the suitability of accommodation offered to him in discharge of its duty under section 195: section 202(1)(f). There is no provision under section 202 for an applicant to request a review of the authority’s assessment of their case or the PHP produced by the authority. Section 202 does not provide a blanket right to request a general review where an applicant is dissatisfied with the approach or outcome being adopted or proposed by the local authority. The right provided by section 202 to request a review of a decision is specific to the types of decision identified in section 202(1): see Ofori-Addo v Haringey LBC [2025] EWCA Civ 277 at [42].

The appellant’s case on Ground 1 is fundamentally flawed because it is based on the assertion that Barnet did not carry out an assessment of her housing needs. That assertion is unsustainable. Having heard all of the evidence, the Judge found that Barnet did make an assessment of the appellant’s housing needs. That finding was not merely one that the Judge was entitled to make – it was plainly right. As summarised above, having gathered preliminary evidence from the appellant and her son, Barnet conducted a telephone interview that addressed each of the three features required by section 189(2) as well as other matters that were relevant to an assessment of the appellant’s housing needs. The record of that interview was then sent to the appellant and her son for their agreement, which was forthcoming when they signed the post-interview declaration forms. The PHP was subsequently sent to the applicant: see [5]-[7] above.

It is plain that Barnet’s assessment of the appellant’s case did not end there. Specifically in relation to housing needs, Barnet consulted its Medical Team who provided the recommendations set out at [10]] above. Those recommendations were incorporated in the statement of criteria for suitability in Barnet’s banding letter on 5 December 2022: see [11] above. When asked to do so, Barnet considered the appellant’s objections to her banding allocation: see [12] above.

The continuing process of assessment and having regard to that assessment was then illustrated by the steps Barnet took to ensure that the first property offered to the appellant was suitable, leading to the acceptance that it was not and withdrawal of that offer: see [13]. At no stage did the appellant suggest that the assessment disclosed by this course of dealing was deficient in relation to its assessment of her housing needs. Her objection to the proposed banding was not based on assessment of her housing needs; rather it was based on the assertion that her current accommodation (in respect of which she was threatened with homelessness) was uninhabitable. Her objection to the Avondale Avenue property was not based on a contention that her housing needs were wrongly identified; rather it was that the bathroom was on the first floor and she had a fear of chair-lifts. Barnet accepted that this rendered it unsuitable for her: see [13] above.

This process, briefly summarised above, to my mind shows Barnet adopting a positive and collaborative approach towards the appellant, taking account of her and her son’s particular needs having regard to their assessment of the case, and making all reasonable efforts over time to engage their cooperation. While I accept that the assessment of the appellant’s case is to be found in more than one document, that does not matter. What matters is the substance of the assessment that was carried out. As to that, the Judge’s rejection of the submission that Barnet made no section 189A assessment at all was and is unimpeachable.

The Judge found in the appellant’s favour that Barnet’s assessment was deficient as regards suitability because its reasoning was insufficient about how the distance of the Property from the appellant’s support network might impact upon its suitability. That deficiency was, as the Judge correctly found, remedied by the Review decision. It is that decision that is the subject of these proceedings. Ground 1 therefore requires reformulation. The issue for us is whether, where a request for review of suitability is made and the resulting review decision adequately addresses and thereby remedies the substantive deficiency in the underlying decision, the review decision can be challenged by bringing an appeal to the County Court on a point of law pursuant to section 204 of the Act on the basis of the original deficiency in the assessment of suitability. I am in no doubt that it cannot.

I would readily accept that there may be circumstances where a failure to carry out an appropriate assessment of an applicant’s case as required by section 189A may be challenged by way of judicial review proceedings. There are numerous examples at first instance of such challenges being brought and the results of such cases are evidently fact-dependent applying normal public law principles. Where an underlying decision (e.g. the assessment of the applicant’s case) is quashed, subsequent decisions that are dependent upon the underlying decision may have to be set aside. However, that is not the present case. No challenge to Barnet’s assessment has been brought by way of judicial review proceedings. As I have mentioned, section 202(1) identifies specifically the decisions that are susceptible to a request for a review. The present proceedings arise from a suitability challenge pursuant to section 202(1)(f) and come to this court via the County Court pursuant to section 204 of the Act.

The absence of judicial review proceedings cannot be glossed over. On established public law principles, administrative acts are valid unless and until quashed by a Court: see Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295, at 366 (Lord Diplock), cited in R (Noble Organisation) v Thanet DC [2005] EWCA Civ 782; [2006] Env LR 8, at para 42 (per Auld LJ). In theory, at least, the requirement under section 195(3) for Barnet to have regard to their assessment of the applicant’s case under section 189A is a mandatory relevant consideration, failure to comply with which could found a vires challenge to the validity of the assessment. But the time for bringing such a challenge is strictly limited, no judicial review challenge was brought within time (or at all) and, in any event, it is plain that such a challenge should have failed on its facts, because it is evident on the Judge’s findings that Barnet did have regard to their assessment as required by the Act. In this case the assessment was not challenged at the time and, having not been quashed, it remains valid.

There was no challenge to the Judge’s approach in principle to the consequences of non-compliance with an imperative statutory requirement as summarised by Etherton C in Natt v Osman – see [26] above. On established principles, based on R v Soneji [2005] UKHL 49, [2006] 1 AC 340, in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27. [2024] 3 WLR 601 the Supreme Court stated:

“[58] … the correct approach to a failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was a purpose of the legislature that an act done in breach of that provision should be invalid.

…

[61] The point of adoption of the revised analytical framework in Soneji was to move away from a rigid category-based approach to evaluating the consequences of a failure to comply with a statutory procedural requirement and to focus instead on (a) the purpose served by the requirement as assessed in light of a detailed analysis of the particular statute and (b) the specific facts of the case, having regard to whether any (and what) prejudice might be caused or whether any injustice might arise if the validity of the statutory process is affirmed notwithstanding the breach of the procedural requirement."

…

[68] In our view the correct approach in a case where there is no express statement of the consequences of non-compliance with a statutory requirement is first to look carefully at the whole of the structure within which the requirement arises and ask what consequence of non-compliance best fits the structure as a whole."

In R v Layden [2025] UKSC 12, [2025] 2 WLR 740the Supreme Court also encapsulated the same principle in slightly different terms at [76]-[77]:

"[76] In order to consider whether Parliament can fairly have intended total invalidity to follow it is necessary to identify the alternative to total invalidity.

[77] In most cases involving the Soneji principle the alternative will be an evaluation of the consequences of the procedural failure, whether any prejudice might be caused and whether any injustice might arise if the validity of the statutory process is affirmed notwithstanding the breach of the procedural requirement (see, for example, A1 Properties … at para 61)."

We do not start with a blank sheet of paper. Two previous decisions of the Court have considered this question in circumstances that are closely analogous to but not quite congruent with the facts of the present case.

In Abed, the duty owed to the applicant was the duty owed pursuant to section 193 of the Act to persons with priority need who are not homeless intentionally. Subject to irrelevant qualifications, the duty is to secure that accommodation is available for occupation by the applicant: section 193(2). The issue for the Court was summarised at [15]:

“The single issue is that Westminster followed an unlawful process in making its offer to the appellant because it did not assess the suitability of the accommodation for her needs before making the offer. Thus the entire focus is on the position on, and before, the date of the offer on 11 February 2010. No criticism is addressed to the review process or to the review decision as such.”

Addressing the origins of the review procedure under Part VII of the Act, Lloyd LJ (with whom Kitchen and Ward LJJ agreed) said at [20]:

“Before this procedure was introduced local authority decisions in this area could only be challenged by way of judicial review. This led to an unmanageable burden of such applications which, if successful, resulted in the local authority having to go through the same decision process again but by a proper method. Instead, in the case of most decisions under this part of the Act, the Act now provides for first of all a right to an administrative review by the authority to be conducted by a different person by or on behalf of the authority; and secondly a right of appeal on a point of law said to be erroneous in the review decision.”

At [26] Lloyd LJ said (in the passage referred to by the Judge):

“On behalf of the appellant Mr Gannon does not challenge any aspect of the review process in the one ground on which the appeal is brought. In my judgment that is fatal to the appeal. The observations in Ojuri have no relevance to a case where a statutory review process is available. In such a case the Act has provided for the applicant to challenge the decision and to have it fully reconsidered, with the opportunity to ensure that the full facts are taken into account. That seems to me to exclude as illegitimate a challenge on the grounds such as the original process was incorrect or even unlawful, because a point of that kind is superseded by the question as to whether the review process was carried out properly and reached a legally correct solution.”

And at [28]-[29] he said:

“28.

In my judgment these show that the review process, which is as Lord Slynn said an administrative process, is a continuation or a replacement for the initial decision-making process. It is therefore in a sense analogous to what would have been the result if under the old procedure the judicial review application had been brought and the administrative court had quashed the original decision and required the local authority to come to a fresh decision. If such a process had then been taken the inadequacy or even unlawfulness of the original decision would have been nothing to the point. Likewise under the present regime, for which the review is a matter of right for the disappointed applicant, it seems to me that while of course any point may be taken in the course of the review as to what was or was not said at the stage of the original offer, what really matters is for the issues of substance to be addressed in the course of the review, and to be properly addressed.

29.

Accordingly even if the local authority failed in its duty to make proper inquiries on the issues relevant to suitability of the accommodation before making an offer, in my judgment the remedy for a disappointed applicant is to exercise the right of review. The applicant thereby has a second chance to have the matter properly considered with the fullest opportunity for representations to be made and a fresh duty on the local authority to make proper inquiries. Only if the result of that process is flawed so as to be wrong in law is there any further recourse by way of appeal [pursuant to] section 204.”

One point of difference, heavily relied upon by the appellant in the present case, is that there is no provision in relation to the duty owed under section 193 that is equivalent to section 195(3). The appellant points out that provisions equivalent to section 195(3), requiring the authority to have regard to their assessment of the applicant’s case under section 189A are also to be found at sections 189B(3) and 190(4). This is factually correct and enables the appellant to argue that a failure to comply with section 195(3) has some special status that necessarily invalidates all that comes after the initial failure, whatever the quality and outcome of a requested review. However, the observations of the Court of Appeal in Abed are statements of general principle going to the fact of Parliament’s provision of an additional remedy that is different and discrete from what is available in judicial review proceedings.

Norton v LB Haringey [2025] EWCA Civ 746 was decided on 17 June 2025, shortly before the hearing of the present appeal. Once again, it was the applicant’s case that the preparation of a lawful section 189A assessment was a condition precedent to a lawful determination of the suitability of offered accommodation. As in Abed, the duty owed by the local authority was the duty under section 193(2) of the Act to a person with priority need who was not homeless intentionally. Once again, the appellant’s case failed.

Lewison LJ (with whom Warby and Jeremy Baker LJJ agreed) gave the leading judgment. The central passage of his analysis is at [47] and [49]-[52] and demands close attention:

“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. There is no such cross-reference in section 210 or the Regulations made under it. Section 193B (6) suggests that an authority is not confined to making decisions based on the section 189A assessment. As HHJ Saggerson rightly said, section 210 does not impose any duty on a reviewing officer (or for that matter on the authority) to consider a section 189A assessment, although he is (or they are) of course free to do so if it is relevant. We have also seen that under section 188 a local housing authority may have an interim duty to secure that accommodation is available for an applicant who may be homeless, eligible for assistance and in priority need. That duty arises before a section 189A assessment is made. Nevertheless, the accommodation must be suitable, in order to comply with section 206. As Mr Bowen KC pointed out in YR at [99], the test for suitability is identical whether section 188 is considered in isolation or in the light of a section 189A assessment. Since a decision under section 188 may be made before the making of a section 189A assessment, and the test of suitability is the same, it must follow that a lawful decision under section 188 may be made in the absence of such an assessment. Mr Johnson's argument entails the conclusion that the lawfulness of a decision on suitability fundamentally changes as the sequential duties come into existence. But the Act, in my judgment, gives no clue to such a radical consequence.

48.

…

49.

Applying the approach in A1 Properties, [the applicant] has lost nothing of value. He was entitled to, and received, a decision on suitability which contains no legal flaw.

50.

Applying the approach in Layden, I should evaluate the consequences if the failure to comply with the imperative requirement invalidates what follows. In my judgment the consequences of holding that compliance with the duty under section 189A is a condition precedent are stark; and unlikely to reflect Parliament's intention. Mr Johnson argued that if no section 189A assessment was prepared, it would not be possible to prepare a PHP and consequently no duty under Part 7 (apart, perhaps, for an interim duty under section 188) could arise. Thus, if Mr Johnson's argument is correct, in the absence of any assessment under section 189A:

i)

The authority would not be entitled to take any steps under section 189B to help an applicant to secure accommodation;

ii)

The authority would not be entitled to decide what advice or assistance is to be provided to an applicant under section 190;

iii)

The authority would not be able to discharge the main housing duty under section 193 by making an offer of suitable accommodation; and

iv)

The authority would not be entitled to take steps under section 195 to prevent an applicant from becoming homeless.

51.

In addition, as Mr Johnson recognised, the acceptance of his argument would mean that if a local housing authority, in the absence of a section 189A assessment, made an impeccable assessment of suitability, and then offered that accommodation to the applicant the offer would be unlawful. I find it impossible to conclude that Parliament can have intended that an otherwise lawful offer, which would have the direct effect of immediate relief of homelessness, would be invalid and unlawful for lack of a section 189A assessment.

52.

In short, an authority would be partially paralysed; and prevented from carrying out what would otherwise be some of its duties to help the homeless or those threatened with homelessness. Parliament is unlikely to have contemplated such paralysis as being acceptable.”

In my judgment, even if these passages from Abed and Norton are not formally binding on us, they provide very strong persuasive arguments by close analogy to which the appellant in the present case has no answer. Parliament has provided an additional remedy (over and above any remedy that may have been available in judicial review proceedings) which is designed to remedy specified deficiencies in decisions made by a local authority. It would, in my judgment be bizarre to the point of incoherence to impute to Parliament an intention that even an entirely faultless review decision could then be set aside because of the earlier deficiency which it has remedied.

Subject to one minor gloss, for these reasons I reach the same conclusion in the present case as was reached in Abed and Norton. The one minor gloss is that, at the commencement of [31] of Norton, Lewison LJ said: “I do not doubt that an assessment of suitability based on an unlawful or otherwise legally flawed assessment under section 189A is itself legally flawed.” Given the overall context provided by the rest of his judgment, I understand Lewison LJ to be referring to the general proposition that I have outlined in [45] above, namely that when a decision is quashed subsequent decisions that are dependent upon the underlying decision may also fall to be set aside. That proposition I regard as uncontroversial. I do not think that Lewison LJ was lending any support to the proposition for which the appellant contends in this appeal. If he was, I would respectfully demur, for the reasons I have attempted to give in this judgment.

I would dismiss the appeal on Ground 1.

The appellant submits that, in the absence of any housing needs assessment, the PHP prepared by Barnet is unlawful. Had it been reviewed on 21 October 2022, as it said it would be, what the appellant asserts as Barnet’s error in not assessing the appellant’s housing needs would have been identified. Accordingly, because Barnet failed to have regard to its assessment of the appellant’s case under section 189A, their decision that the Property was suitable was unlawful and their duty pursuant to section 195(2) has not been brought to an end. “The review decision addressing the suitability of the accommodation offered cannot substitute the failure to discharge the duty to undertake and assessment of an applicant’s housing needs and prepare a lawful PHP”.

Barnet submits that the PHP was adequate, either when read on its own or in the context provided by the other documents that set out Barnet’s assessment of the appellant’s housing needs and the features mandated by section 189A(2). Even if it is not, Barnet submits that this is an appeal from the Review decision and that the decision being reviewed was not the PHP or its adequacy.

In my judgment, the appellant’s submissions on Ground 2 suffer from the same fundamental flaws as those on Ground 1. First, the PHP read in context was an adequate document. Second, even if it had been deficient in some way, the issue that was reviewed at the appellant’s request was the issue of suitability, which was fully investigated and properly dealt with in the Review decision. Third, it would be wrong to impute to Parliament an intention that a deficiency in the PHP, if proved, should lead to invalidation of the Review decision.

I would therefore dismiss the appeal on Ground 2 for essentially the same reasons as apply to Ground 1.

I agree.

I also agree.