In R(B) v Redbridge LBC [2019] EWHC 250 (Admin), Jeremy Johnson QC, sitting as a Deputy Judge, was required to adjudicate on what is, as far as I am concerned, a really important point of practice, given the nature and continuing obligations of suitability of accommodation in homelessness cases, and the increasing number of suitability reviews (especially following the 2017 Act).  He also came to the wrong result imho – I wonder if there is an appeal, even if it becomes academic (which it might).  Ms B was offered accommodation and sought a review.  It was one of those ones where affordability is raised, but, given that one doesn’t know what the bills are going to be for the property at the outset, the reviewer and applicant make approximations.  The review went against her, albeit on marginal grounds (and there are various consequential proceedings from that first review and appeal).  For the purposes of this application for JR, however, what happened was that Ms B’s actual electricity bill arrived and it was more per week than had originally been estimated.  She sought a further review, to which Redbridge did not respond, and which, ultimately, led to these proceedings as Redbridge did not conduct that further review.

The question for the Deputy Judge was what is the basis for that second review.  The argument appears to have proceeded initially on the narrow basis of what kind of factual change justifies a further review, based on Rikha Begum.  But the Deputy Judge noted a point not taken by Redbridge, and that was that a request for a review had to be duly made (s. 202(4)) and that meant had to be made within 21 days of the decision or such longer period as the authority will allow.  The suitability review has never sat particularly well in a general review provision, in part because suitability issues arise at different times – which was kind of the point in this case, and made by Lindsay Johnson for B, who argued that suitability “… is inherently fluid – the suitability/affordability of accommodation may change over time. He submitted that it cannot have been the intention of Parliament to shut out the possibility of seeking a review when the suitability/affordability of accommodation changed after a period of time”, especially when suitability represents a continuing obligation.  However, the Deputy Judge noted that, simply because there is a continuing obligation does not mean that there is a continuing decision (at [37]).  On this rather unsatisfactory basis, then, the case was lost.

The Deputy Judge recognised the “perilous position” B was in, and also the procedural problems this case produced.  However, he said that she was not without a remedy:

The Defendant is under a continuing duty to secure that the accommodation is suitable. The Claimant can ask the Defendant to discharge that duty by satisfying itself that the accommodation continues to be suitable. The Defendant would then have to consider making an updated decision as to suitability. If it agreed to do so and then made an adverse decision then this could be subject to a review request. If it irrationally refused to make an updated decision then that could be subject to challenge. ([49])

This seems to be six of one and half a dozen of the other.  When B‘s solicitors sent the actual electricity bill to Redbridge and requested a further review, were they not effectively requesting both a further decision and review?  In other contexts (I’m thinking here of land registration cases like Cann), the courts take that point.  Given her “perilous position”, why impose some overly fomalistic double step?