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How many reviews?

By Dave

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?


  1. Minos Perdios

    Dave this would be the correct procedure, i.e. the council considers the suitability of the accommodation and makes a ‘first tier’ decision before any review can be requested. This is because a person can only request a review of a decision on the suitability of the accommodation. If no such decision exists or it is over 21 days since the last decision was made a new decision is required. It is wrong to consider that a person can request a review of the suitability of the accommodation. Only a decision can be reviewed.

    – See Review Regulations 2018:

    (h) section 202(1)(f) (decision as to the suitability of accommodation offered to A in
    discharge of their duty under any of the provisions mentioned in section 202(1)(b) or (e)
    or as to the suitability of accommodation offered to A as mentioned in section 193(7)),

  2. Chris

    Minos, I disagree I’m afraid.

    That section of the Review Regulations very plainly states that an applicant can review the suitability of the accommodation offered, rather than the decision to offer it.

    Further there is quite a bit of case law around this, including there being an assumption that an Authority has already considered suitability of the offer prior to making it and considered it to be suitable when it was made. Hence, the “decision” being reviewed is the offer itself which is taken to be a “decision” in the first instance that the offered accommodation was suitable.

    In cases of out of borough placements and PRSOs, most Councils have now put in place a second tier in the offer process which considers reasons for provisional refusal of an offer when making effectively a “second offer” of the same property but, in the new offer their refusal reasons are considered and explanation given as to why the Authority still considers the property to be suitable. If the applicant then seeks a review of the suitability of the offer, then that is dealt with under s.202 as such, and in effect, both the original offer and the second one are taken into account when conducting the review but the offer itself remains the “decision” being challenged on suitability grounds.


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