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Listen very carefully, I shall do this only once


The Claimant in R (on the application of Brooks) v LB Islington [2015] EWHC 2657 (Admin) was the mother of 3 children, who applied to the local authority as homeless following her eviction from a housing association property for rent arrears on 24/3/2015. Sadly, Ms B’s adult, terminally ill, son died two days after the offer of interim accommodation that was the subject of this judicial review.

After a spell in B&B accommodation, Ms B was offered a 3 bed house in Bexley on 14/4/2015 in discharge of the s.188(1) duty. On 15/4/2015, Ms B complained about the suitability of the property, stating that it had taken 2-3 hours to drive there from Islington and that the stairs at the property were not suitable for her wheelchair-using son. The housing officer responded that under normal circumstances, the journey time would only be 45 minutes-1 hour but he was prepared to review the suitability of the property once details of Ms B’s son’s discharge from hospital and his medical requirements were made available.

Despite being warned that she would only receive this one offer, Ms B refused it and the authority sent her a formal discharge of duty letter. The High Court granted Ms B’s request for interim relief on 23/4/2015 and permission was granted on 5/6/2015, with an order that the injunction would continue until notification of the s.184 decision. That decision was issued on 16/5/2015 and found that Ms B had made herself intentionally homeless from her housing association property.

By the time of the hearing before Lewis J on 19/8/2015, the claim had therefore become academic but the judge nonetheless allowed it to proceed given the importance of the issue for applicants and for local authorities discharging their s.188 duties.

There were two issues for the court to decide: 1) whether the authority’s s.188(1) duty came to an end once it was satisfied that Ms B had refused an offer of suitable accommodation and 2) whether Ms B should have been given a ‘cooling off’ period of a few days to allow her to reconsider.

Lewis J rejected the argument that there is a duty to be performed, irrespective of any refusal, until the s.184 decision is notified. The words ‘pending a decision’ only fixed the time period within which the duty was to to be performed. Once the duty was performed and the offer refused, there was no further duty absent a material change of circumstances. The judge also had regard to scarcity of council resources and the undesirability of keeping council properties empty and available indefinitely. The claim was therefore dismissed.

The position is summarised at the end of the judgement in the following terms (para.47):

If the housing authority have secured an offer of suitable accommodation, then, ordinarily, they will have performed their statutory duty under section 188 of the Act. If the applicant refuses the offer of suitable accommodation, the authority cannot be required to take further steps to provide alternative accommodation unless there is a subsequent material change of circumstances which renders the accommodation no longer suitable.


The general view of the NL team is that the more productive challenge would have been to the suitability of the offered property, rather than to the nature of the duty. It would indeed be surprising if a homeless applicant had greater freedom of choice at the s.188 stage than if they were owed the full s.193 duty.

I’m also interested by the judge’s gloss on the statutory wording of s.188 and the insertion of the word ‘offer’. Some authorities have attempted to argue that making arrangements with a host to keep an applicant in their existing accommodation is sufficient to discharge the duty. However, it would be difficult, I think, to describe such an arrangement as an ‘offer’. That question will have to wait for another case.

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.


  1. @Sectioned_

    “Wheelchair user” is preferred to “wheelchair-confined” (and “wheelchair-bound”).

  2. Sally Goldman

    I was the solicitor with conduct of this case and unfortunately by the time the appellant sought advice the question of suitability was moot although it was certainly raised in pre litigation discussions with the LA. The unsuitability of the accommodation was an issue at the interim relief stage but by the time of the permission hearing the LA had dealt with the point of suitability by contending that that would have been reviewed as and when the son was discharged from hospital.

  3. DNorton

    Thinking back on this and reading over the judgement, I notice that paragraph 42 refers to R v Kensington and Chelsea R.L.B.C. ex p. Kutjim (1999) 32 H.L.R. 579 and expresses the opinion that it doesn’t really assist in interpreting s.188 HA1996. I can see the logic behind that, they are different statutory frameworks, but does that signify anything regarding the use of R (on the application of Carstens) v Basildon DC [2007] EWHC 122 (Admin)?

    Both Carstens and Brooks are from the admin court so precedent isn’t the issue, and Carstens is on the slightly different subject of where s188 accommodation is accepted but the applicant breaches some sort of condition of occupation, so maybe I’m seeing a conflict where none exists, but it seemed interesting that the Brooks judgement explicitly mentioned Kutjim.

    (Declaring interest here: While I’m not currently working on any matter related to this, I have had clients ask me about breach of conditions on s.188 accommodation in the past and likely will in future so this does have professional interest to me. If this strays too close to the prohibition on asking for legal advice I’ll understand.)

    • Giles Peaker

      Can’t really see any conflict, or impact on Carstens.


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