AN, R (on the application of) v London Borough of Barking and Dagenham

This is one of the many judicial review claims coming before the Administrative Court which raises issues as to the legal adequacy or otherwise of the efforts that have been made by a local authority for providing housing assistance to a homeless family under Part VII of the Housing Act 1996 (“HA 1996”). A high proportion of such claims relate to London boroughs. This is not surprising, given the relatively high cost of accommodation in London and the consequent scarcity of private rented housing for families at rent levels capable of being afforded by them (whether from their earned incomes or through the housing element of Universal Credit).

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. Many homeless people in the London boroughs who are in ‘priority need’, and who are thus owed the ‘main’ housing duty under s.193 HA 1996, wish to be housed within the same, or a neighbouring, London borough, or at least within the Greater London area. Many of those people have good practical reasons for wishing to be accommodated locally, such as the locations of their children’s current schools, caring responsibilities towards extended family members, or a reasonable desire to maintain contact with existing support networks. But the scarcity of available housing in London, and the finite nature of local authority budgets, means that local authorities have to disappoint many such people, even if this results in some degree of hardship for those individuals or their families.

This makes 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). Such assessments play an important role in enabling a local authority’s housing officers to carry out their daily tasks of allocating available housing resources – including, in particular, flats and houses that are located within the local area – to housing applicants in a way that is consistent and fair, based on relative levels of need.

It is also important that local authorities seek to ensure that, where the only accommodation they have yet been able to offer to a family with children is temporary bed and breakfast (“B&B”) accommodation, this continues for no longer than necessary. Articles 3 and 4 of the Homelessness (Suitability of Accommodation) (England) Order 2003 (S.I. 2003/3326) (the “2003 Order”) effectively place a 6-week limit on the period for which a local authority’s provision of “suitable” accommodation for a homeless person with “family commitments” may take the form of B&B accommodation.

These duties of local authorities are the subjects of the two grounds of challenge raised in this judicial review claim.

Ground 1 concerns the lawfulness of the Defendant’s assessment and/or review of the Claimant’s housing needs in accordance with s.189A HA 1996, read together with ss.205-210 HA 1996, s.11(2) of the Children Act 2004 (the “CA 2004”), and the public sector equality duty in s.149 of the Equality Act 2010 (the “PSED”). Ground 1 alleges that, to the extent that the Defendant has made assessments of the Claimant’s housing needs, those housing needs assessments (“HNAs”) have been inadequate for complying with the requirements of those statutory provisions.

The Claimant pursued Ground 1 notwithstanding her rights to a statutory internal review by the Defendant of its decision as to the ‘suitability’ of her current accommodation, and to challenge the outcome of such a review by way of an appeal to the county court. The Claimant had already requested such an internal review under s.202 HA 1996. As to why that alternative remedy did not make this judicial review claim inappropriate, the Claimant’s Counsel, Mr Jackson, contended – and I accept – that the ongoing internal review was not a substitute for Ground 1, which is concerned with the Defendant’s compliance with its duty under s.189A to produce a HNA. The purpose of s.189A is to frontload the assessment of the needs of applicants to inform future offers of accommodation and to ensure applicants can challenge any incorrect assessment of needs before being placed in accommodation. A s.202 review, and any appeal from the review outcome under s.204, would be limited to considering the suitability or otherwise of specific accommodation, and not concerned with the adequacy or content of the HNA which would also inform future offers of housing. As matters stood, the Claimant was at risk of being moved out of the Defendant’s borough based on a flawed HNA which did not recognise her need to remain in the borough. This was, Mr Jackson submitted, a separate issue from the ‘suitability’ of her current accommodation.

Ground 2 is that the Defendant’s “Temporary Accommodation Placement Policy” document is unlawful in that it authorises, induces and/or approves its housing officers placing homeless applicants with dependent children in B&B accommodation for longer than 6 weeks, contrary to articles 3 and 4 of the 2003 Order.

The following summary of the factual background largely replicates the relevant section of the Claimant’s skeleton argument, which was uncontroversial.

The Claimant was born in Nigeria and moved to the UK in 2013. She lives with her daughter (“EB”), who is now 7 years old.

EB has autism spectrum disorder (“ASD”) and special educational needs (“SEN”). She has impaired speech, communication, concentration, and sensory processing. She often becomes dysregulated by loud noises, crowded places, and sudden changes in environment. EB struggles to use public transport. She can become dysregulated when buses or trains are busy, or due to certain colour combinations, or because the seat she wants is not available. If EB’s journey to school is overwhelming for her, it impairs her learning at school.

EB has an education health and care plan (“EHCP”), a document prepared pursuant to Part III of the Children and Families Act 2014. The EHCP sets out her impairments and the special educational provision she requires, which include one-to-one support from a teaching assistant, regular short breaks, individualised and small group teaching, and speech and language therapy.

EB currently attends a mainstream primary school in Barking (the “Current School”) where she receives one-to-one support from two teaching assistants and attends booster sessions. The Current School is said to provide a valuable source of stability for her. She is making significant progress there.

The Current School’s view, however, is that it cannot fully meet EB’s needs due to the high level of support she requires. It recommended that she be offered a place at a school with more specialist provision. Pursuant to that recommendation, the Claimant has applied for a place for EB at another primary school in the Defendant’s borough (the “Other School”) – a school which, unlike the Current School, has an ‘additional resource provision’ (a specialist internal unit) for children with ASD – for the school year commencing in September 2025. The Claimant says that it is, and has always been, vital that there is no disruption to EB’s education at the Current School whilst she is enrolled there.

The Claimant has been seeking employment and pursuing adult education to provide for her family and lift it out of homelessness. She is currently undertaking a Level 1 Health and Social Care course at a college in the Barking and Dagenham area, following on from other courses she has completed there.

In 2020, the Claimant and EB started living with a friend (“FA”) in a flat in the Defendant’s borough. In the spring of 2024, FA informed the Claimant that she would need to find alternative accommodation as the landlord wanted the flat back. In Autumn 2024, after being granted leave to remain in the United Kingdom, the Claimant applied to the Defendant for homelessness assistance, in anticipation of becoming homeless.

On 28 November 2024, the Defendant proposed a property for the Claimant and EB in Dartford, 1.5 to 2 hours from the Current School by public transport. The Claimant says that she was told by the housing officer that if she did not accept, she would have to move to Manchester or Durham. The property subsequently became unavailable.

On the same day, the housing officer sent the Claimant a HNA form, which she duly completed. In the form, the Claimant outlined EB’s ASD diagnosis, the importance of her education at the Current School, the disruption that would be caused by any change in her education, and her need for in-borough accommodation. The Claimant had a telephone call with the housing officer around that time, which involved some limited discussion around EB’s needs.

By email to the housing officer on 2 December 2024, the Claimant’s support worker from the organisation Together with Migrant Children set out EB’s ASD diagnosis, EHCP, the support she was receiving at the Current School, her difficulties using public transport, the disruption that would be caused if she was required to change school, and the consequent unsuitability of the proposed accommodation in Dartford.

On 3 December 2024, the Defendant provided the Claimant with a Personalised Housing Plan (“PHP”). That document (the “December Plan”) not only set out a plan for what the Claimant and the Defendant would each do to help find suitable accommodation for the Claimant and EB but also included information relevant for identifying the Claimant’s housing needs. The December Plan document thus appears to have been intended to serve as the HNA required by subsections (1)-(3) of s.189A HA 1996, as well as the PHP provided pursuant to subsections (4)-(8). The December Plan included the following text:

“Why you have approached us”: “You have approached the Council for housing advice and assistance as you have been evicted by your aunt”.

“Your household needs”: “You are a single parent with 1 child. According to the local housing allowance (LHA), you have been advised you may be entitled to a 2 bed property. The LHA for a two-bed property in Barking and Dagenham is approximately £1,250 per month. You have been advised that we carry out an affordability assessment which will indicate as to how much rent you can afford to pay”.

“Your support”: “You stated you need assistance with looking for and securing alternative accommodation”.

“Pending and completed actions”: [A series of generic steps regarding searches for accommodation.]

On 12 December 2024, the housing officer emailed the Headteacher of the Current School, asking whether EB could cope in a different setting as the family might need to relocate. By letter in response, the Headteacher set out a summary of EB’s educational needs and EHCP. She outlined her concerns that any move requiring EB to change school would be highly detrimental on account of the relationships and stability she had established at the Current School, EB’s difficulties with change, and disruption to the specialist support she was receiving.

Around that time, the Defendant proposed properties in Hackney, Enfield and Greenwich, all of which were far from the Current School. The Claimant considered the properties in Hackney and Greenwich as she had no other options, but those properties were ultimately unavailable.

On 16 December 2024, the Claimant’s support worker sent an email to the Defendant stating that EB had been offered a place in September 2025 at the Other School. This appears to have been a misunderstanding on her part, as the Defendant’s SEN Panel (which is responsible for allocating places in the ‘additional resource provision’ at the Other School) had not, in fact, offered EB a place.

On 18 December 2024 the Claimant and EB had to leave the flat where they had been living with FA. The Claimant not been able to find, and the Defendant did not provide, accommodation in advance of that date. The Claimant and EB, having nowhere else to go, had to temporarily stay with a friend in Lewisham.

The Claimant’s solicitors sent a pre-action letter to the Defendant on 13 January 2025 challenging its failure to provide accommodation under s.188(1) HA 1996.

On 15 January 2025, the Defendant provided the Claimant with B&B accommodation at a Travelodge hotel in its borough (“the Hotel”). The Hotel had no laundry facilities or kitchen. The absence of a kitchen was particularly difficult because of EB’s ASD and her associated selective eating habits. The bookings made by the Defendant for the room in the Hotel were typically for 7 days, renewed at the last minute before they expired on 29 January, and 7, 14 and 21 February. That dynamic appears to have caused distress to the Claimant due to the uncertainty and threat of street homelessness. It is likely also to have had a negative impact on EB.

On 22 January 2025, the Headteacher of the Current School wrote a letter to the Defendant setting out her concerns regarding the suitability of the Hotel. She detailed EB’s educational needs, her difficulties using public transport, the distress caused by not having her familiar foods, and the overall impact on EB’s educational well-being. At the close of the letter, the Headteacher stated that she “would welcome any input or reassurance from the Council on how these concerns are being taken into account in assessing [the family’s] housing needs”.

On 30 January 2025, the Claimant’s solicitors sent the Defendant a second pre-action letter, alleging failures to accept the relief duty under s.189B, produce a lawful HNA and PHP under s.189A, carry out a lawful review of the Claimant’s housing needs per s.189A(9), and provide the Claimant with suitable accommodation. No substantive response was forthcoming.

On 10 February 2025, the Defendant provided the Claimant with: (i) a letter accepting the relief duty; (ii) an updated PHP (the “February Plan”); and (iii) a copy of a document titled “Suitability Assessment”, dated 5 December 2024 (the “Suitability Assessment”), which stated that it “details what type of accommodation would be suitable for you”). The February Plan was largely identical to the December Plan, save for certain aspects. Under “Action: Private Rent – find accommodation”, the February Plan stated:

“You have been advised a two-bed property in Barking and Dagenham in the private rented market is in excess of £1,600 therefore, considering that you are currently not in employment and taking into account your income and expense it could mean that you may not be able to afford to rent in B&D. You have been advised that even though we will try to match you to a property in B&D, we cannot guarantee that a property found that is suitable and affordable will be in Barking and Dagenham therefore, the onus is on you to look for accommodation. To increase your chances, you have been advised to consider looking / renting outside of B&D as properties are likely to be relatively cheaper and more affordable.”

The Suitability Assessment asked, and set out answers to, a series of questions relevant to identifying accommodation that would be suitable for the Claimant and EB. Under “What size property do you require?”, the answer provided is “2 bed property, 1 bed for the applicant and one for 7 years old daughter”. In relation to “Location”, the most relevant questions and answers were as follows:

“What school(s) do the children attend?”:

“She attends [name of Current School] in Barking, a general needs school, and is currently in Year 2. She has been attending this school since nursery. Her mother drops her off and picks her up from school using a combination of walking and public transport. The child can manage one bus journey but feels nervous with too many changes.

Yes, the child has an EHCP in place, which is fulfilled by the SENCO department due to her autism spectrum condition. The plan needs to be reviewed to determine if it is transferable.”

The answer to “Do the children need to attend their school?” was incomplete.

“Does you or any member of his household work?

“No, but the applicant informed me that she has secured a job as a Health care assistant … for 20 hours per week, She stated that this job schedule will fit around her daughter’s schedule. She also stated that she has not started the job yet.

Applicant stated that her main concern is her daughter’s education. She wants the property near her daughter school with minimum involvement of transport- maximum one bus journey or walking distance”

“Would you be interested in relocating to those areas?”

“Client does not want to move because she does not want to disrupt her daughter’s education and the support she gets in this school. She has only provided this reason for not relocating to any other areas.”

On 13 February 2025, the Claimant’s solicitors sent the Defendant submissions challenging the lawfulness of the February Plan and Suitability Assessment.

On 21 February 2025, the Defendant offered the Claimant accommodation in a hostel in Dagenham (the “Hostel”), to which the Claimant and EB then moved on 24 February 2025. The Hostel was in the Defendant’s borough and had a shared kitchen where the Claimant could prepare food for EB. The shared living environment and journeys by public transport from the Hostel to the Current School were said by the Claimant to be causing considerable distress for EB. (At the time of the hearing before me, the suitability of the Hostel was subject to a separate and ongoing s.202 review.)

On 11 March 2025, this judicial review claim was started.

On 19 March 2025, the Defendant notified the Claimant that it had accepted its main housing duty under s.193(2). On the same day, the Defendant provided the Claimant with another updated PHP (the “March Plan”). It was materially the same as the February Plan, save that the steps in the PHP had been updated.

By emails on 29 April and 1 May 2025, the Claimant informed the Defendant that EB was making significant progress at the Current School and that the Claimant was no longer intended to move her to the Other School (if an offer of a place there was forthcoming).

On 1 May 2025, the Defendant provided the Claimant with another updated PHP (the “May Plan”). It was similar to the February and March Plans. As to the differences:

In the course of these proceedings, the Defendant has filed a witness statement of Mr Cimelli (Service Manager for the Defendant’s Homeless Service), dated 7 May 2025. Mr Cimelli’s evidence asserts that there were a series of contradictions between the Headteacher’s view that EB should be accommodated locally and (i) the Claimant’s earlier suggestion that she would be prepared to accept accommodation in neighbouring boroughs, (ii) the extent to which it had apparently been possible to continue meeting EB’s educational needs during the period whilst she was commuting from Lewisham, and (iii) the Current School’s position that it would not be able to meet the needs set out in EB’s EHCP. Mr Cimelli then noted that the Claimant was continuing to seek alternative schooling with specialist SEN provision. From this, Mr Cimelli concluded:

“Therefore, the Council have continued to seek accommodation for the Claimant both within and outside of Barking and Dagenham as there is contradictory evidence that EB needs to remain at [the Current School] for the benefit of her education and/or social development.

Due to the contradictory nature of the information about EB’s educational needs we are aware that accommodation close to Barking is most likely to be accepted by the Claimant, but as demonstrated by her staying with her friend in Lewisham we will continue to propose accommodation outside of the area where this would improve the household’s circumstances. While we are aware that a move to another area may require EB to move schools, we are aware that the Claimant is looking for a more specialist setting for her daughter in any event, so this should not present a barrier in terms of securing more appropriate housing. Therefore, while we are seeking accommodation for the Claimant as close to the borough as possible this cannot be guaranteed.”

The Headteacher of EB’s Current School set out in a letter to the Claimant’s solicitors dated 16 May 2025 that it would be in EB’s best interests to remain in the Defendant’s borough, but that she would benefit from placement in an ‘additional resource provision’ (such as that which exists at the Other School).

In a witness statement of 19 May 2025, the Claimant explained that she still did not know whether EB would be offered a place at the Other School, but if an offer was forthcoming, then the Claimant would need to carefully consider whether to accept it, as her present view was that EB should not move school.

On 23 May 2025 the Claimant’s solicitors wrote to the Defendant to confirm that there was no offer of a place for EB at the Other School.

I was required to determine at the outset of the hearing whether to grant the Claimant permission to amend her Ground 1.

As noted above, on 1 May 2025, the Defendant provided the Claimant with a further PHP: the May Plan. Like the December Plan and the February Plan, the May Plan recorded information relevant to the Claimant’s housing needs and thus appears to have been intended to serve, not only as an updated PHP, but also as an updated HNA.

On 19 May 2025, the Claimant applied for permission to amend Ground 1 so as to expand it to include a challenge to the May Plan (in addition to the earlier Plans). That application had not yet been determined by the start of the hearing before me. The Claimant’s justification for the proposed amendment was that it would ensure that her claim was up to date, so the most recent HNA was considered under Ground 1. Whilst the May Plan was similar to that produced in March, and the substance of the Claimant’s criticisms remained the same, the May Plan did include some additional details about EB’s education.

The Defendant opposed the application to amend Ground 1, warning that allowing the amendment would create a ‘rolling’ approach to judicial review in the manner deprecated by Chamberlain J in R (ECPAT UK (Every Child Protected against Trafficking)) v Kent CC, Secretary of State for the Home Department [2023] EWHC 2199 (Admin), at [13]. Counsel for the Defendant, Mr Lane, noted that s.189A(9) HA 1996 obliges the local authority to review the HNA to take account of changes in circumstances. Given that context, there was, he submitted, a need for a ‘cut-off point’ for the purposes of this litigation, so that the lawfulness of the content of a HNA could be considered against the background of the circumstances known to the Defendant at the time when that HNA was produced. Permitting the amendment would risk ‘judicializing’ the Defendant’s review process.

I decided at the start of the hearing that the amendment application be allowed. Declining to include consideration of the May Plan in these proceedings would, in my judgment, have been inappropriate as it would have deprived me of the ability to assess whether any relief should be granted under Ground 1. The unlawfulness being alleged by way of Ground 1 was essentially an ongoing failure by the Defendant properly to assess the Claimant’s housing needs under s.189A HA 1996. If the May Plan was lawful, then the alleged failure by the Defendant to carry out a lawful HNA would already have been cured and so Ground 1 would have become academic. But if the May Plan was unlawful, then essentially the same failure alleged by the Claimant would be continuing. The Claimant’s amendment application was not, to my mind, comparable to an attempt to expand a judicial review claim challenging one decision into a ‘rolling’ challenge to subsequent related, but separate and distinct, decisions.

Further, the Claimant made the application to amend her grounds expeditiously following her receipt of the May Plan. There was no suggestion that the Defendant would be prejudiced by the application – indeed, the amendment had the potential to benefit the Defendant’s position at the hearing, in either of two ways. First, insofar as the May Plan was an improvement on the previous Plans, the Claimant would be less likely to succeed in showing that there was a continuing failure by the Defendant to make a lawful HNA. Secondly, the May Plan, as I have said, had the potential to render Ground 1 academic.

Ground 1 is accordingly concerned with whether the Defendant has carried out its duties to the Claimant under s.189A HA 1996; and, for the purpose of considering that matter, I have considered the HNAs set out within the December Plan, the February Plan, and the May Plan (together, “the Plans”).

S.189A HA 1996 requires a local housing authority to assess the case of a homeless person who is eligible for assistance (this is the HNA duty) and to seek to agree a plan with the person for finding and retaining suitable accommodation for him (this is the duty to produce a PHP).

S.189A(1) HA 1996 sets out the HNA duty:

“(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.”

S.189A(2) HA 1996 sets out what a HNA must include:

“(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.”

The HNA must be notified to the applicant in writing under s.189A(3).

Under ss.189A(4)-(5), following the making of a HNA, the authority must seek to agree a PHP with the applicant, which must be recorded in writing if agreed:

“(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.”

Otherwise, s.189A(6) requires that the authority record the failure to agree a plan:

“(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.”

S.189A(7) provides that a record under s.189A(5) or (6) can contain any advice for the applicant that the authority considers appropriate.

S.189A(8) requires that the authority provide the applicant with a copy of a written record produced under s.189A(5) or (6).

The HNA and the PHP must both be kept under review. S.189A(9)-(11) provides:

“(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.”

Under s.206 HA 1996, accommodation secured under Part VII of the HA 1996 must be “suitable”. The Secretary of State may by order pursuant to s.210(2) HA 1996 specify “(a) circumstances in which accommodation is or is not to be regarded as suitable for a person, and (b) matters to be taken into account”.

The Secretary of State has used those powers to specify certain requirements of suitability in the Homelessness (Suitability of Accommodation) (England) Order 2012/2601 (the “2012 Order”). Article 2 provides that “the local housing authority must take into account the location of the accommodation”, including:“the distance of the accommodation from the district of the authority” in the case of out-of-borough placements, and “the significance of any disruption which would be caused by the location of the accommodation to the employment […] or educationof the person or members of the person’s household”.

The principles developed in the case law relating to s.189A HA 1996 which are relevant to this case were not in dispute between the parties:

For completeness, I note that the parties’ Counsel also drew my attention, at the hearing, to the recent Court of Appeal judgment in Norton v London Borough of Haringey [2025] EWCA Civ 746, which considered whether a local authority is precluded from conducting a lawful suitability assessment in the absence of a HNA. It was common ground between the parties, however, that the Court of Appeal judgment was not relevant to the issues in these proceedings.

S.11(2) CA 2004 requires that local authorities “make arrangements for ensuring that … (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children …”.

The legal principles relevant for applying that duty in the present case were uncontroversial between the parties:

The relevant sub-sections of s.149 of the Equality Act 2010 require as follows:

“(1)

A public authority must, in the exercise of its functions, have due regard to the need to …

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

…”

“(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

…”

“(4)

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.”

“(7)

The relevant protected characteristics are—

...

disability;

…”.

S.6(1) of the Equality Act 2010 defines “disability” as follows:

“A person (P) has a disability if—

(a)

P has a physical or mental impairment, and

(b)

the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

The PSED applies to housing authorities when performing their functions under Part VII HA 1996: Hotak v Southwark London Borough Council [2016] A.C. 811 (“Hotak”), at [76] per Lord Neuberger.

In Haque v Hackney London Borough Council [2017] PTSR 769, Briggs LJ (as he then was) considered what the PSED requires in the context of a suitability review under s.202 HA 1996. He found that:

The PSED should not be deployed as a “technical trap” to impugn otherwise unimpeachable assessments (McMahon v Watford Borough Council [2020] PTSR 1217, per Lewison LJ at [89]). Nor should a reviewing court adopt too technical a view or adopt a ‘nit-picking’ approach when considering compliance with the PSED (at [16] and [17]). Nevertheless, there can be cases where a review which would otherwise be lawful is unlawful because it does not comply with the PSED (Hotak, [79]).

The Claimant’s case (as argued by her Counsel, Mr Jackson) was that none of the Plans produced by the Defendant for the Claimant complied with the requirements of s.189A HA 1996, s.11(2) CA 2004 or the PSED.

First, and most importantly, there was no reasoned assessment or identification of the Claimant’s core housing needs in any of the Plans. A proper assessment would necessarily have included consideration of EB’s housing needs, and proximity to EB’s school, and its accessibility by public transport, were the “nuts and bolts” of this family’s housing needs.

None of the Plans made clear whether the Claimant or EB needed local accommodation. The May Plan noted that the support EB was receiving under her EHCP “provides the consistency and structure she needs to thrive and progress academically” and observed that the Claimant would “like” to keep EB enrolled in the same school. The Plans would not allow a reasonable housing officer, or the Claimant, to identify what were the Claimant’s assessed needs, rather than her mere wishes.

The fact that there had been changing information as to whether EB would be remaining at the Current School, or moving to another school in the borough which had specialist provision, made no difference to the needs assessment – in both instances, she needed accommodation in Barking and Dagenham.

Secondly, the Defendant had failed to take reasonable steps of inquiry in order to identify and assess the Claimant’s housing needs. The Defendant’s engagement with the school was cursory, despite having been put on notice of EB’s ASD and SEN. Its inquiries comprised of one email sent to the school on 12 December 2024. That email indicated that the Defendant had already determined that there was no need for the Claimant’s accommodation to be located within the borough and it was seeking to ratify that view. There was no subsequent follow-up, including no confirmation as to whether the EHCP could be transferred to a school in another borough.

Further, the Defendant had not conducted a face-to-face interview with the Claimant. Whilst this was not enough alone to constitute a failure to undertake reasonable inquiries, it was relevant when combined with the other investigative failures.

This failure to conduct inquiries meant the Defendant had not rationally equipped itself to determine the Claimant’s housing needs.

Thirdly, a series of discrete relevant considerations were absent from the Plans. The December, February and March Plans contained no reference to EB’s ASD, SEN or EHCP. Further, none of the Plans referenced the Claimant’s education as required by the 2012 Order, set out the nature of accommodation the Claimant requires, or identified whether the Claimant needed to be accommodated within the borough and/or within a certain distance of EB’s school.

Mr Jackson’s oral submissions focused on s.189A HA 1996 and s.11(2) CA 2004. To the extent that his submissions also relied on the PSED, they did so in relatively compressed terms. He submitted that the requirements arising from the PSED, when engaged because the family includes a child with disabilities, will be met if (but only if) the authority properly carries out its duties under s.189A HA 1996 and s.11(2) CA 2004, paying careful attention to the disabled child’s needs.

The Defendant did not dispute that it owed the Claimant a duty under s.189A, or that its duty was continuing. It acknowledged that the purpose of s.189A HA 1996 is to assist applicants in looking for accommodation, and to inform housing authority decisions when offering properties. Whilst suitability under s.206 HA 1996 and assessment under s.189A HA 1996 are different processes, the assessment process obviously informs and assists the placement of applicants in “suitable” accommodation.

The Defendant’s case (as argued by its Counsel, Mr Lane) was that it was very alive to the Claimant’s concerns regarding in-borough accommodation. Mr Lane did not seek in his oral submissions to defend the legality of the March Plan (or earlier plans), but he contended that the May Plan was sufficient under s.189A HA 1996, s.11(2) CA 2004 and the PSED. Taking together the May Plan, the Suitability Assessment provided in February 2025, and the witness statement of Mr Cimelli, the evidence sufficed to show that the Claimant’s and EB’s housing needs had been expressly and carefully considered.

In support of that submission, Mr Lane made the following points (amongst others):

The Defendant contended that it had recognised a need for in-borough accommodation, even if the documents did not use the express language of need. Read in context, the documents set out above demonstrated that the Defendant had assessed and recorded the Claimant’s housing needs in terms of location and travel to school.

The Defendant also noted that its job in assessing the Claimant’s needs was made more difficult by the Claimant – properly and responsibly – keeping the Council updated as to the changing and at times inconsistent position regarding the Claimant’s intentions to move EB from her Current School to the Other School. This was relevant context when considering the lawfulness of the Plans.

Whilst the Defendant stressed the severe pressure on local housing authorities, the sheer number of applications received, and the extreme shortage of properties, it nevertheless acknowledged that, as a matter of law, none of these circumstances negated or diluted the obligation for it to comply with its statutory duties under s.189A.

A preliminary issue I need to determine is precisely which documents constitute the HNA. The Claimant contended that neither the Suitability Assessment nor the witness statement of Mr Cimelli should be recognised as forming part of the HNA. The Defendant, in contrast, contended that both of those documents could be considered in any assessment of whether it had complied with its duty to carry out a HNA.

The witness statement of Mr Cimelli: I have no difficulty in concluding that the statement of Mr Cimelli was not part of the HNA. It was produced in the context of, and for the purposes of, these proceedings. It was not an assessment of the circumstances set out in s.189A(2) HA 1996 but rather was a document produced as part of adversarial proceedings, in order to explain the Defendant’s conduct to date. It provides new reasons, not provided to the Claimant previously, as to why Mr Cimelli was of the view that she did not need to be housed within the borough.

The Suitability Assessment: This document, dated 5 December 2024, was provided to the Claimant at the same time as the February Plan. It appears to be seeking to address issues of relevance to s.189A(2)(b) HA 1996 (i.e. the housing needs of the Claimant), as it considers factors relating to the suitability of a property such as size, location, rent, and medical needs.

The Suitability Assessment could not comprise a whole s.189A(2) assessment as it does not consider the circumstances of the Claimant’s homelessness as required by s.189A(2)(a), nor the support she requires to obtain or retain accommodation as required by s.189A(2)(c). Further, it is not clear how the Suitability Assessment informed the February (or March or May) Plan, if at all; and nor is there any cross-referencing between the documents.

In my judgment, the Suitability Assessment can, however, properly be read together with the February Plan, when assessing whether the Defendant complied with s.189A(2) in February 2025. As found in XY, a HNA can be contained within more than one document. Whilst Mr Jackson rightly cautioned against an overly expansive approach to the definition of an HNA to an indeterminate range of documents, the position in this case is that the Suitability Assessment document was provided to the Claimant at the same time as the February Plan and was plainly intended to be part of the s.189A assessment communicated to the Claimant in February 2025. The top of the document stated “Suitability Assessment (details of what type of accommodation would be suitable for you)”, making clear its purpose.

Further, it would, when assessing a complaint that the Defendant has failed to meet its duty under s.189A in and after March 2025, be wrong simply to ignore the Suitability Assessment. That document formed part of the suite of documents the Defendant provided to the Claimant and in which her housing needs were considered, and the Defendant never indicated that the Suitability Assessment had been withdrawn. That document presumably remained in the Claimant’s housing file which would have been considered by the housing officer when seeking to find accommodation for the Claimant.

That conclusion is one I have reached with some hesitation, given that there was no express reference to the Suitability Assessment in either the March Plan or the May Plan. It is unfortunate that those Plans did not expressly refer to the Suitability Assessment and make clear how it was taken into account and that it continued to be a ‘live’ document. I note that in SK, at [39]-[41], Lang J found, upon her analysis of the facts of that case, that text within a document provided by the local authority as part of a previous HNA could not be read across into a subsequent HNA in circumstances where that subsequent HNA did not make express reference to that text. In any event, in the present case, even if the Suitability Assessment is taken into account, it does not (for reasons that will be apparent from my analysis further below) ultimately assist the Defendant in showing that it has complied with its duties under s.189A.

This was not a challenge to the suitability of the Claimant’s current accommodation – that matter was being considered in separate proceedings involving a statutory review and a potential subsequent appeal to the county court. The focus of Ground 1 was on whether the various Plans were inadequate because they had failed to identify matters relevant for informing the selection of suitable accommodation.

The Claimant had made a positive case’ to the Defendant that her accommodation needs were for self-contained accommodation located within the borough, no further than 30 minutes travelling time from EB’s Current School. The Claimant had also relied on her own employment and education circumstances.

The question as to what would constitute “suitable” housing for the Claimant is not for me to decide in these proceedings. I note, however, that Mr Lane accepted in the course of his oral submissions that the Claimant and EB need housing within the borough.

A question for me to consider is what the Defendant knew, or should have known, about the needs of the Claimant and EB, in particular EB’s requirements in relation to her proximity to her school, and whether this was properly recorded in the assessments. In my view, the key issue that a HNA relating to the Claimant needed to grapple with, was whether EB’s disability-related difficulties in travelling to school meant that she needed accommodation within 30 minutes’ walk of her Current School.

As set out below, in my judgment, none of the Plans suffice to constitute, or to demonstrate that the Defendant carried out, an assessment of the Claimant’s housing needs complying with s.189A(2) and (9) HA 1996, and s.11(2) CA 2004. The Plans failed to record a reasoned assessment or identification of the Claimant’s core housing needs, and in particular, none make clear whether the Claimant requires housing within the borough by reason of EB’s school arrangements, nor how close any property needed to be to EB’s school.

The information before the Defendant at the time of the December Plan was as follows:

In my judgment, the December Plan did not comply with the requirements of s.189A(2) HA 1996 or s.11(2) CA 2004.

The only “needs” identified are that the Claimant is a single parent with one child, and her budget. S.189A(2)(b) required the Defendant to assess the housing needs of the Claimant, including what accommodation would be suitable for her and anyone with whom she resided – in this case, EB. The educational needs of EB and any disruption to her education should she be forced to relocate were the “nuts and bolts”, or “key needs” for a lawful assessment. No mention, let alone assessment, is made of the relevance of EB’s ASD, her schooling, or the potential for disruption to her education and wellbeing should she be required to move school or undertake a lengthy commute. I am fortified in this conclusion by the Defendant’s realistic acceptance, in the course of the hearing, that the March Plan, which was materially the same as the December Plan, did not suffice as an adequate assessment of EB’s needs.

For the same reasons, the December Plan also did not comply with the requirements of s.11(2) CA 2004. EB’s needs are not identified, considered or assessed.

The information before the Defendant at the time of the February Plan, in addition to that which it already held at the time of the December Plan, was as follows:

The February Plan was identical to the December Plan, save for its recommendations under the PHP, i.e. the text relating to s.189A(4) HA 1996, in which it provided further advice on seeking rental properties outside of the borough. Read alone it would not constitute a lawful HNA, for essentially the same reasons as those I have given above in relation to the December Plan.

In light, however, of my conclusion above that the Suitability Assessment should be read together with February Plan, I must also take account of the contents of the Suitability Assessment. That document provided additional relevant information about EB. It noted that she is nervous taking public transport, can manage one bus journey, and that the Claimant “wants the property to be near her daughter [sic] school” and “does not want to move because she does not want to disrupt her daughter’s education”.

Whilst the Suitability Assessment set out a number of potentially relevant facts regarding EB’s schooling, it does not provide any consideration or assessment of the Claimant and EB’s needs. The furthest the Suitability Assessment goes is recording the Claimant’s wishes with regard to proximity to EB’s school. In line with XY, ZK and YR, recording a “desire” is insufficient as an analysis of need. There is a complete absence of any reasoned assessment of what this family requires. For example, it conducts no consideration of what kind of commute would be appropriate.

Further, the Assessment states that EB has an EHCP and this “needs to be reviewed to determine if it is transferable”. The reference to a transfer indicates that moving school is possible.

In the context of extreme pressures on housing systems, it is critical for assessments to demarcate clearly what an applicant needs in terms of suitability (with the consequence that housing officers should not offer accommodation to the applicant which is incapable of meeting those needs), and what may be desirable. ‘Hedging’ between needs and desires deprives the HNA of its purported function, i.e. providing information to assist housing officers in properly allocating a suitable property, and enabling the applicant to understand what the local authority has assessed their needs as being.

The Suitability Assessment therefore does not remedy the omissions in the February Plan. In my judgment, the February Plan, read together with the Suitability Assessment, was an unlawful review in that it failed to meet the Defendant’s duties under s.189A(9) HA 1996 and s.11(2) CA 2004.

The information before the Defendant at the time of the March Plan, in addition to that above, was as follows:

The March Plan was materially the same as the February Plan, except that certain steps within the PHP section of the Plan had been updated.

Mr Lane did not seek to defend the legality of the March Plan in his oral submissions. He acknowledged that the March Plan did not mention EB’s education, so it was not possible to argue that it took full account of EB’s needs.

In my judgment, Mr Lane’s position was a realistic one. For the reasons already given in relation to the December and February Plans, the March Plan (together with the Suitability Assessment), which is materially the same as the previous Plans, did not comply with the requirements of s.189A(9) HA 1996 or s.11(2) CA 2004.

The information before the Defendant at the time of the May Plan (the current Plan as at the time of the hearing before me), in addition to the information already set out above, was as follows:

The May Plan, in the section titled “Your household needs” contains no information about EB’s ASD or education requirements. The section titled “Your support” records that: (i) EB receives support from her school for her ASD; (ii) EB is on an EHCP which enables her to receive one-to-one support, which provides the consistency and structure she needs to thrive; and (iii) considering the school’s current support package, the Claimant “would like to keep her enrolled there”.

Thus, the May Plan goes no further than identifying that EB receives support from her school, and that the Claimant has a wish to keep her enrolled there. Even read benevolently, a document stating matters as factual background does not thereby provide an assessment. Whilst the May Plan can be read as evincing an acceptance and acknowledgment by the Defendant of the importance of EB’s educational arrangements, it does not state explicitly, nor is it implicit, that the Claimant needs in-borough accommodation. The Plan also does not identify an appropriate maximum distance between EB’s school and a property that would be “suitable” for the family.

The highest the Plan goes is, as Mr Jackson put it, implicitly indicating the desirability of finding in-borough accommodation for the Claimant. I agree with Mr Jackson that this is not good enough: the Defendant needs to “nail its colours to the mast” and explain what it has assessed the Claimant and EB’s needs as being. Is there a need for accommodation to be provided within the borough or not? How far away from EB’s school can a property be located without being unsuitable, and why?

A reasonable housing officer reviewing the May Plan together with the Suitability Assessment could not divine what the Claimant’s needs have been assessed to be – needs which the parties appear now to agree include a two-bedroom, self-contained property in Barking and Dagenham. Further, the Defendant’s position regarding the proximity of a property to EB’s school remains unclear as there is no discussion in any of the documents as to how close the property must be to a school (whether in terms of distance or travel time by walking or public transport), beyond reference to the need for the journey to avoid multiple changes of transport.

I do not exclude, at least as a theoretical possibility, that it might have been lawful for the Defendant to have identified the Claimant’s housing needs in terms under which accommodation outside the borough might be suitable if certain other conditions were first met. It may well be that EB’s educational needs are such that she would be better served by moving to a school with an ‘additional resource provision’ or SEN unit for children with ASD. The benefits to EB of moving to such a school could be sufficiently great as to make the disruption to her of moving schools (which would undoubtedly be difficult for her) a ‘price worth paying’ in the long run. That school could be the Other School in Barking (if EB were offered a place there), or it could potentially be a school in another borough, whether within or outside London. There might also be advantages to this family of moving outside of London, in terms of accessing lower rent levels that may make for a more sustainable housing solution in the longer term. But designing and implementing such a comprehensive package for this family could not be achieved by the Claimant herself; it would need to be done by the Defendant through diligent time-consuming internal activity involving close inter-departmental collaboration between its housing and its education departments, and in close consultation with the Claimant. There is high demand for places in specialist SEN settings, and EB and the Claimant would be dependent on the Defendant to secure such specialist provision for EB, in order that EB could move to the new school and, at the same time, the family could be provided with suitable accommodation within a needs-appropriate travelling distance from that school.

I have seen nothing within the witness statement of Mr Cimelli, or any of the other documents produced by the Defendant, to indicate that the Defendant’s housing department has been actively collaborating with its education department to secure such a comprehensive, but complex-to-implement, result. The reality is that the only specialist school option that the Defendant has sought to secure for EB is a place at the Other School; an option that is dependent on a place in that school’s ‘additional resource provision’ becoming available and that place then being offered to EB (rather than to another child with ASD) by the Defendant’s SEN Panel – something which has not, so far, happened. The Claimant’s case, to which the Defendant has provided no real answer, is that, even if EB were eventually offered a place at the Other School and took up that offer, her need to live within close travelling distance to that school would mean that the family still required in-borough accommodation.

I was surprised by the Defendant’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, stating:

“Even though we will try to match you to a property in B&D, we cannot guarantee that a property found that is suitable and affordable will be in Barking and Dagenham therefore, the onus is on you to look for accommodation. To increase your chances, you have been advised to consider looking / renting outside of B&D as properties are likely to be relatively cheaper and more affordable.”

Further, Mr Lane’s skeleton argument had indicated that the Defendant did not accept that in-borough accommodation was necessarily required, stating (by reference to the witness statement of Mr Cimelli): “(b) the school sought to confirm that “remain in the local area would be preferable”; (c) there is contrary information available to suggest that this is not, or at least not necessarily, the case”. Mr Cimelli concluded in his statement that “the Council have continued to seek accommodation for the Claimant both within and outside of Barking and Dagenham as there is contradictory evidence that EB needs to remain at [the Current School]. … [W]e will continue to propose accommodation outside of the area where this would improve the household’ circumstances.”

For these reasons, in my judgment the May Plan, read together with the Suitability Assessment, failed to comply with the requirements of s.189A(9) HA 1996 and CA 2004.

In my view, the Defendant conducted sufficient inquiry as required pursuant to the duty of assessment in s.189A HA 1996 and s.11(2) CA 2004.

Since October 2024, following its initial contact with the Claimant, the Defendant was aware of EB’s ASD, her EHCP, the support she was receiving at school, and her mother’s wish for her to remain in that school. The Defendant also conducted a telephone interview with the Claimant. The Defendant contacted EB’s school in December 2024 requesting further information about the potential disruption which a move may cause to EB, and received a response. Whilst the Claimant was critical of the Defendant’s failure to conduct a face-to-face interview, taken in the round, the Defendant took steps to and in fact did acquaint itself with the key information required to understand the Claimant’s needs. Whilst it may have been preferable for it to have undertaken further inquiries, in my judgment it is not the case that no reasonable authority would have failed to undertake further inquiries.

The Defendant’s failing was, in this case, that it failed to take proper account of the information obtained from the inquiry it made, rather than a failure to undertake the inquiry.

The Claimant’s final area of criticism was the lack of reference in any of the Plans to her own education. The Claimant contended that this was required, as Article 2(b) of the 2012 Order obliges a local authority to consider location when assessing the suitability of a property, including the significance of any disruption caused by the location to the education of the applicant or members of their household. The Defendant was made aware of the Claimant’s education at the latest in March 2025, when it received the Claimant’s witness statement which detailed her employment and studies. The Defendant has provided no explanation of its consideration (if any) of the Claimant’s education.

In my judgment, the Claimant’s education was never a magnetic factor when her housing needs were being assessed, including when specific consideration was being given to whether in-borough accommodation was necessary (not just desirable). The magnetic factor is, and always has been, the alleged needs of her daughter to reside within 30 minutes’ travel time from her Current School, and anyway to reside within the borough (in which the Other School is also located). The Claimant’s current course of study is anyway due to come to an end shortly.

The PSED requires a public authority, when exercising its functions, to have due regard to the need to advance equality of opportunity between those who are disabled and those who are not.

In view of my conclusions above that the December, February, March and May Plans failed to meet the requirements of s.189A(2) and (9) HA 1996 and s.11(2) CA 2004, it is not strictly necessary for me to consider whether they also breach the PSED. Nevertheless, I will assess it briefly, given that it may be relevant to the form of declaration or other relief I should grant.

The Defendant accepted that the PSED was engaged in its exercise of its functions under s.189A HA 1996, and did not dispute that EB satisfies the definition of a disabled person under s.6 of the Equality Act 2010. The PSED applies to local authorities in carrying out their functions under Part VII of the HA 1996: Pickford v Sandwell MBC (“Pickford”) [2024] EWHC 756 (Admin), [2024] PTSR 1374, [46]-[47], Tindal J.

A HNA requires an authority to consider (inter alia) the housing needs of the applicant, and what accommodation would be suitable for them and those with whom they reside. As noted by the Defendant, this includes consideration of the factors set out in the Homelessness Code of Guidance for Local Authorities (last updated on 30 May 2025) (the “Homelessness Code”), including “any requirements to meet the needs of a person who is disabled or has specific medical needs” (at [11.10]).

The s.189A duty is therefore a duty closely aligned with compliance with the PSED. In other words, it is difficult to imagine a scenario where a HNA is compliant with the requirements of s.189A HA 1996, but not the PSED. Conversely, in situations where a HNA has failed to consider the needs of a disabled person in breach of s.189 HA 1996, it is difficult to imagine a case where this will not also breach the PSED. Accordingly, in this context, the two duties operate in a complementary, and in part overlapping, way.

Even reviewing the Plans and Suitability Assessment in a non-technical and benevolent manner, focusing on substance over form, in my judgment the Defendant did not comply with the PSED in any of the Plans (or the Suitability Assessment). That is so even though the Defendant clearly recognised that EB had a disability. By way of example of this, the Plans included reference to EB’s ASD and EHCP, and advised the Claimant to apply for disability living allowance.

Despite acknowledging EB’s ASD and SEN, the Defendant did not consider the specific aspects or consequences of EB’s disability as relevant to the suitability of accommodation in any of the Plans or the Suitability Assessment. As already set out above in relation to s.189A HA 1996 and s.11(2) CA 2004, the Defendant did not properly engage with the information provided to it by the Claimant, EB’s school, EB’s support worker or solicitor, or its own inquiries, regarding the Claimant’s housing needs arising specifically from EB’s ASD or SEN. The Defendant only went as far as acknowledging the importance of the EHCP and recording the Claimant’s wish that she be housed in close proximity to EB’s school.

Thus, there was no “focus” at all, let alone a “sharp focus” on EB’s disabilities and what the disadvantages and needs arising from them are in the Plans. The Plans record a handful of relevant facts about EB’s ASD and EHCP, without any assessment as to the consequences of those facts for the Claimant and EB’s housing needs. The Defendant did not consider EB’s disabilities and ask with rigour what would constitute suitable accommodation for her. It follows that Defendant did not have the “due regard” required by the PSED to what accommodation would be suitable for EB in view of her disability, to enable her to continue to access, and make positive progress in, education.

By Ground 2, the Claimant alleges that the Defendant’s internal guidance document entitled “Temporary Accommodation Placement Policy” (the“Placement Policy”) is unlawful because it does not reflect, and is incompatible with, articles 3 and 4 of the 2003 Order. As noted above, those articles effectively make the placement of families with children into B&B accommodation a last resort, permissible only where no other suitable accommodation is available, and provide that B&B accommodation can be accepted as suitable accommodation for such a family for no longer than 6 weeks. The Claimant’s case is essentially that the wording of the Placement Policy is such that a housing officer reading that document would not understand that the 6-week limit is effectively a mandatory one, and so the policy is liable to lead to the Defendant acting unlawfully by leaving homeless families with children in B&B accommodation for longer than the 6-week maximum period.

The 2003 Order is secondary legislation made by a Secretary of State pursuant to s.210(2)(a) HA 1996 which provides that the Secretary of State may by order specify “circumstances in which accommodation is or is not to be regarded as suitable for a person”. The provisions of the 2003 Order therefore form part of the body of legislation binding upon local authorities which determines whether accommodation provided or offered to a person pursuant to a housing duty under Part VII of the 2003 Act is “suitable” so that it is capable of meeting or discharging that duty.

Article 3 of the 2003 Order provides that “B&B accommodation [as defined in Article 2] is not to be regarded as suitable for an applicant with family commitments” when provided under certain provisions of Part VII. Those provisions include both s.188(1) (the interim housing duty) and s.193(2) (the main housing duty). The circumstance specified in article 3 is a circumstance in which accommodation is not to be regarded as suitable, per s.210(2)(a) HA 1996.

Article 3 is, however, to be read alongside article 4, which effectively creates a limited exception to the general rule laid down in article 3. That exception applies:

“(a)

where no accommodation other than B&B accommodation is available for occupation by an applicant with family commitments; and

(b)

the applicant occupies B&B accommodation for a period, or total of periods, which does not exceed 6 weeks.”

Article 3 is to be interpreted in accordance with the definitions provided in article 2, which include the following:

““applicant with family commitments” means an applicant—

(a)

who is pregnant;

(b)

with whom a pregnant woman resides or might reasonably be expected to reside; or

(c)

with whom dependent children reside or might reasonably be expected to reside;

“B&B accommodation” means accommodation (whether or not breakfast is included)—

(a)

which is not separate and self-contained premises; and

(b)

in which any one of the following amenities is shared by more than one household—

(i)

a toilet;

(ii)

personal washing facilities;

(iii)

cooking facilities,

but does not include accommodation which is owned or managed by a local housing authority, a registered social landlord or a voluntary organisation as defined in section 180(3) [HA 1996].”

The effect of those provisions is that B&B accommodation cannot be “suitable” for applicants with family commitments unless two conditions are satisfied: (1) the local authority has satisfied itself that no other accommodation is available; and (2) the applicant has occupied the B&B accommodation for a period not exceeding 6 weeks (Pickford, [56]-[65]).

The purpose of the 2003 Order was to “improve the protection available” to homeless families (Pickford, [64]). The rationale for the requirements imposed by articles 3 and 4 is apparent from the Homelessness Code, a document which constitutes statutory guidance published by the Secretary of State, to which local authorities are required by s.182(1) to “have regard” when exercising “their functions relating to homelessness and the prevention of homelessness”. Paras 17.33-17.34 of that Code state:

“[B&B] accommodation caters for very short-term stays only and affords residents only limited privacy, and may lack or require sharing of important amenities, such as cooking and laundry facilities. Wherever possible, housing authorities should avoid using B&B accommodation as accommodation for homeless applicants, unless, in the very limited circumstances where it is likely to be the case, it is the most appropriate option for the applicant.

Living in B&B accommodation can be particularly detrimental to the health and development of children. Under section 210(2), the Secretary of State has made the [2003 Order]. The 2003 Order specifies that B&B accommodation is not to be regarded as suitable for applicants with family commitments provided with accommodation under Part 7.”

It is now well established that the Administrative Court will, in appropriate circumstances, entertain a challenge to the lawfulness of a policy (whether a published policy or an internal policy), and may find a policy to be unlawful: Gillick v West Norfolk and Wisbech Area Health Authority [1986] A.C. 112 (“Gillick”).

In R (A) v Secretary of State for the Home Department [2021] UKSC 37, [2021] 1 W.L.R. 3931, the Supreme Court refined the principles for determining whether a policy is unlawful. In that case, the Supreme Court’s decision was rendered by a single judgment jointly authored by Lords Sales and Burnett JJSC, with which the other three justices agreed. As stated in that judgment at [38], the test to be applied is essentially to ask this question: “Does the policy in question authorise or approve unlawful conduct by those to whom it is directed?” The rationale for that test is effectively summarised in the same paragraph:

“… [T]he court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way. In this limited but important sense, public authorities have a general duty not to induce violations of the law by others.”

The judgment went on to identify (at [46]) “three types of case” where a policy may be unlawful by reason of what it says or omits to say about the law when giving guidance for others:

“In broad terms, there are three types of case where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others: (i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (i.e. the type of case under consideration in Gillick); (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position.”

As observed by Jonathan Moffett KC sitting as a Deputy Judge of the High Court in R (CPH) v Secretary of State for the Home Department [2025] EWHC 848 (Admin) (“CPH”), at [146], those three broad types of cases are illustrative; they are not straightjackets and it is not necessary in each case to examine which category a case falls within. In so finding, the Deputy Judge echoed a view expressed by Linden J, to like effect, in R (Cardona) v Secretary of State for the Home Department [2021] EWHC 2656 (Admin), [2022] 1 W.L.R. 1855, at [70].

The Claimant’s argument that the Placement Policy is unlawful relates to the following text within that document:

“Wherever possible, the Council will limit the use of B&B accommodation placements for families with dependent children, pregnant women, and young people aged below 18. Where no other suitable accommodation exists and such placements are necessary, the Council will endeavour to move such households to more suitable accommodation within six weeks.” (Emphasis supplied.)

Mr Jackson’s skeleton argument put the Claimant’s case this way:

“The effect of the Placement Policy is that the Defendant’s housing officers will, “[w]here possible”, limit the use of B&B accommodation for applicants with family commitments. They will “endeavour” to ensure that families with dependent children are moved from B&B accommodation to alternative accommodation within six weeks.

… [T]he Placement Policy does not, therefore, accurately reflect from the 2003 Order. The Placement Policy misrepresents the law by recasting the hard-edged 6-week limit in Article 4 as an obligation of conduct rather than an obligation of result. It qualifies the 6-week limit with considerations of possibility and reasonableness (i.e. best endeavours).

… [I]n so doing, the Placement Policy “authorises or approve[s]” or induces unlawful conduct whereby housing officers will place households with family commitments in B&B accommodation for longer than 6 weeks (applying the test in A at [38]). It is liable to induce violations of the 2003 Homelessness Order by housing officers in the discharge of their functions under Part VII. It tacitly contemplates and approves the placement of applicants with family commitments in B&B accommodation for over 6 weeks.”

In my judgment, the Placement Policy does not fall within any of the three types of cases identified by the Supreme Court in A as being ones in which a policy will be found to be unlawful.

The Placement Policy text about which the Claimant complains does not contain an implicit positive statement of law in respect of B&B accommodation which is wrong and will induce housing officers to breach the 2003 Order. That text does not say, for example, that B&B accommodation may be used for families for longer than 6 weeks if other accommodation is not available. Far from inducing or encouraging breaches by the Defendant of articles 3 and 4 of the 2003 Order, the Placement Policy promotes compliance. It does so by making clear to the Defendant’s housing officers – and also, by extension, to homeless applicants who read the policy and rely on it when making representations to the Defendant – that: (a) the use of B&B accommodation for housing families with children is to be limited to circumstances “[w]here no other suitable accommodation exists”; and (b) the Defendant will endeavour to move such families to other accommodation within 6 weeks. If housing officers faithfully apply the Placement Policy, then the Defendant is more likely to comply with articles 3 and 4 than would be the case if the Placement Policy did not include the text about which the Claimant complains.

Nor, in my judgment, does the Placement Policy purport to provide an accurate account of the legal position in respect of the 2003 Order whilst providing a misleading picture of the law. Nowhere does the Placement Policy state that it provides, or is intended to provide, a comprehensive and precise exposition of the Defendant’s legal duties, so that it might potentially mislead a housing officer into understanding that the 6-week limit set out in the 2003 Order is not a mandatory requirement. I acknowledge the usefulness of local authorities having policies on the allocation of housing to homeless persons, in order to encourage consistent decision-making and assist housing officers in ensuring the authority’s compliance with its statutory duties (a point made by Lady Hale JSC in Nzolameso at [39]-[41]). But the Placement Policy is not legislation; it is intended to be a practical guide used by housing officers when seeking to place homeless applicants into accommodation. It does not supplant the need for housing officers to be familiar with, and trained in, the relevant legislation, including the provisions of Part VII HA 1996 and the 2003 Order. It would not be appropriate for the courts to impose upon local authorities a duty to craft their policies so as to provide the level of completeness and precision provided by the body of legislation setting out the full set of the authority’s legal duties relating to the policy’s subject matter.

The Placement Policy is not, in my view, analogous to the Home Office policy that was considered by the Court in CPH. That was a case in which the court was concerned with the lawfulness of a set of criteria being applied by the Home Office to a particular category of applications by children for indefinite leave to remain. Where an authority is using a set of criteria for taking decisions as to whether a person should be granted a particular status, then the criteria must, of course, be such that its application to applicants’ cases will produce lawful results. The Placement Policy, in contrast, is not in the nature of a set of criteria to be used for taking a yes or no decision. Rather, it is practical guidance to assist housing officers in making difficult judgements about how to use the authority’s available resources for assisting homeless persons in accordance with its duties.

Reality compels me to acknowledge that, however familiar local authority housing officers may be with that body of legislation, there may be occasions when the authority’s duties under that legislation are not fully and immediately met in a homeless applicant’s case. There may, for example, be cases where the housing officer knows that the accommodation being provided to such a person is not “suitable” (perhaps because the 6-week limit prescribed by the 2003 Order has been exceeded), but there is simply no other accommodation available, and that which is available is better than leaving the person street homeless. In the Defendant’s borough, there may well be instances of housing officers’ endeavours to find alternative accommodation for families who have been in B&B accommodation for close to 6 weeks are unsuccessful, resulting in the 6-week limit being exceeded. I do not seek to excuse such breaches of duty by the Defendant, or to weaken the responsibility of the courts to uphold the absolute nature of local authorities’ relevant duties under the HA 1996 (as confirmed by the Supreme Court in R (Imam) v London Borough of Croydon [2023] UKSC 45). Where such breaches occur on the part of the Defendant, however, the cause of those breaches will be the limited accommodation resources it has made available to its housing officers, and not the diligent endeavours made by those officers in accordance with the Placement Policy to find alternative accommodation for the affected family.

In my view, the Claimant’s case can, on analysis, be seen as an attempt to compel the addition to the text of the Placement Policy some words stating that homeless families with children who have been placed in B&B accommodation must be found other accommodation within 6 weeks. But, in my judgment, there is no legal basis for me to compel the Defendant to include such words in its Placement Policy, in circumstances where (as I have said) the Placement Policy does not misstate the law and does not purport to be a comprehensive and precise exposition of the Defendant’s legal duties to homeless persons. That is so even though: (a) the inclusion of such words in the Placement Policy might well be desirable and might also potentially have some effect in reducing the frequency with which the requirements of the 2003 Order are breached; and (b) I accept that there is a degree of risk that a housing officer reading the Placement Policy might misunderstand, or erroneously infer from, its wording that compliance with the 6-week limit is not an absolute legal requirement. As the Supreme Court made clear in A at [34], applying Gillick, it is “not the role of policy guidance to eliminate all uncertainty regarding its application and all risk of legal errors …. … T]he drafter of a policy statement is not required to imagine whether anyone might misread the policy and then to draft it to eliminate that risk.”

The Supreme Court reinforced this point at [65], where it explained that the test for determining whether a policy is unlawful is not whether the terms in which the policy has been drafted are likely to increase (or fail to decrease) the likelihood of officials who read the policy acting unlawfully:

“… If the principle were that a policy is unlawful if it creates an unacceptable risk that an individual will be treated unlawfully, that is a substantially wider principle than that stated in Gillick and inconsistent with it. There is no sound conceptual basis for separating out unlawfulness due to unfairness from unlawfulness for any other reason. … [A] test whether a policy creates an “unacceptable risk” that an individual will be treated unfairly or unlawfully provides no criterion of what makes a risk count as unacceptable. … [I]f the test of inherent unfairness is applied by reference to the principle in Gillick, the law supplies a reasonably clear criterion of unlawfulness which has a sound foundation in principle. … [W]ithout such a foundation, the assertion of such a power of review by the courts, in relation to functions (the operation of administrative systems and the statement of applicable policy) which are properly the province of the executive government would represent an unwarranted intrusion by the courts into that province. … [I]f one moves away from that principled foundation, there is a risk that a court will be asked to conduct some sort of statistical exercise to see whether there is an unacceptable risk of unfairness …. But a court is not well equipped to undertake such an analysis based upon experience. In principle, the test for the lawfulness of a policy should be capable of application at the time the policy is promulgated, which will be before any practical experience of how it works from which statistics could be produced. The test for the lawfulness of a policy is not a statistical test but should depend, as the Gillick test does, on a comparison of the law and of what is stated to be the behaviour required if the policy is followed. …”

It follows that Ground 2 must be dismissed.

For the reasons I have given, the claim for judicial review succeeds on Ground 1 but not on Ground 2.

I have considered what would be the appropriate form of relief, if any, to be granted on Ground 1. It is not, in my view, necessary or appropriate for me to quash any of the Plans or the Suitability Assessment. The duties in s.189A are dynamic ones which in the sense that local authorities are obliged to keep the housing applicant’s situation under review and to update the HNA and PHP as appropriate. The Defendant has been, and remains, subject to that continuing duty and should comply with it in a way that remedies its failings identified in this judgment.

I will, however, grant a declaration as follows:

On behalf of the Claimant, Mr Jackson, in his written submissions on consequential matters, urges me also to make a mandatory order to require the Defendant to undertake a fresh and lawful HNA within the next 14 days. On behalf of the Defendant, Mr Lane says no mandatory order is needed, given that the May Plan states that the next review date is 31 October 2025 and so the Defendant will review and update its HNA by then. He submits that time is needed for the Defendant to obtain updating information from EB’s Current School and potentially from other organisations.

In my view, it is appropriate to make a mandatory order in this case. 31 October 2025 is over 8 weeks from now. That is simply too long in circumstances where the Defendant has already known for many months the essential facts for assessing the family’s housing needs. Since the time of the hearing before me, the Defendant has accepted that the Claimant’s current temporary accommodation is not ‘suitable’. But the Claimant and EB have remained in that accommodation. EB is therefore starting the new school year, this week, still having to commute from that unsuitable temporary accommodation. I note that the making of a lawful HNA is but the first step to a local authority subsequently finding and offering suitable accommodation under s.193 HA 1996.

The mandatory order I will make will be in the following terms:

The Claimant asks that the Defendant pay the costs of the claim, given that the claim has been successful. In my view, however, it is appropriate to make a proportionate reduction to reflect the fact that, although Ground 1 succeeded, Ground 2 failed. Ground 2 was a distinct and independent ground of claim which challenged the lawfulness of a document that was separate from the HNAs and PHPs relating to the Claimant. That Ground raised a separate set of legal issues requiring exploration of a distinct body of case-law, and has thus generated its own costs – albeit I accept that the vast majority of the total costs of these proceedings will have been driven by, or would anyway have had to be incurred for determining, Ground 1. I will therefore order that the Defendant pay 70% of the Claimant’s costs.