16/06/2020

Ending it all – duties under section 188

Mitchell, R (On the Application Of) v London Borough of Islington (2020) EWHC 1478 (Admin)

Where a local authority has an initial s.188 Housing Act 1996 duty to provide interim accommodation, but then makes a s.184 decision that the applicant is not in priority need, is that sufficient to bring the s.188 duty to an end? In this judicial review, the answer turns out to be no, at least not if the s.189B duty is continuing and notice of no further duty has not been served.

Mr M had applied to Islington as homeless. It was common ground that the interim accommodation duty under s.188 was engaged at that point. About two months later (within the 56 day period), Islington sent a letter headed RE: Notification of Decision – Part VII of the Housing Act 1996, which set out Islington’s reasons for finding that Mr M was not in priority need and which concluded:

“13. For the reasons set out above and having considered all of the information and situation as a whole; I have concluded that you are not in priority need. You are not significantly more vulnerable than an ordinarily vulnerable person as a result of being rendered homeless.
14. I regret that I cannot be of further help and the council will not be providing you with accommodation on a temporary or permanent basis. Please note that your stay at this temporary accommodation … has been cancelled and you will be required to leave on Monday 14 October 2019, last night is Sunday 13 October 2019.

Mr M requested a review and accommodation pending review, the accommodation was refused. During pre-action correspondence on the refusal, Mr M raised the issue of the lack of termination of the s.189B duty and asserted that the s.188 duty continued. Islington rejected this, which led to the present claim. In the meantime, the review decision upheld the finding of no priority need.

S.188 (as amended by the Homelessness Reduction Act 2017), reads (with key section emphasised):

“188.— Interim duty to accommodate in case of apparent priority need.
(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they must secure that accommodation is available for the applicant’s occupation.
(1ZA) In a case in which the local housing authority conclude their inquiries under section 184 and decide that the applicant does not have a priority need—
(a) where the authority decide that they do not owe the applicant a duty under section 189B(2), the duty under subsection (1) comes to an end when the authority notify the applicant of that decision, or
(b) otherwise, the duty under subsection (1) comes to an end upon the authority notifying the applicant of their decision that, upon the duty under section 189B(2) coming to an end, they do not owe the applicant any duty under section 190 or 193.
(1ZB) In any other case, the duty under subsection (1) comes to an end upon the later of—
(a) the duty owed to the applicant under section 189B(2) coming to an end or the authority notifying the applicant that they have decided that they do not owe the applicant a duty under that section, and
(b) the authority notifying the applicant of their decision as to what other duty (if any) they owe to the applicant under the following provisions of this Part upon the duty under section 189B(2) coming to an end.
(1A) But if the local housing authority have reason to believe that the duty under section 193(2) may apply in relation to an applicant in the circumstances referred to in section 195A(1), they shall secure that accommodation is available for the applicant’s occupation until the later of paragraph (a) or (b) of subsection (1ZB)] regardless of whether the applicant has a priority need.
(2) The duty under this section arises irrespective of any possibility of the referral of the applicant’s case to another local housing authority (see sections 198 to 200).
(2A) For the purposes of this section, where the applicant requests a review under section 202(1)(h) of the authority’s decision as to the suitability of accommodation offered to the applicant by way of a final accommodation offer or a final Part 6 offer (within the meaning of section 193A), the authority’s duty to the applicant under section 189B(2) is not to be taken to have come to an end under section 193A(2) until the decision on the review has been notified to the applicant.
(3) Otherwise, the duty under this section comes to an end in accordance with subsections (1ZA) to (1A), regardless of any review requested by the applicant under section 202. But the authority may secure that accommodation is available for the applicant’s occupation pending a decision on review.”

S.189B reads:

“189B Initial duty owed to all eligible persons who are homeless
(1) This section applies where the local housing authority are satisfied that an applicant is—
(a) homeless, and
(b) eligible for assistance.
(2) Unless the authority refer the application to another local housing authority in England (see section 198A(1)), the authority must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least—
(a) 6 months, or
(b) such longer period not exceeding 12 months as may be prescribed.
(3) In deciding what steps they are to take, the authority must have regard to their assessment of the applicant’s case under section 189A.
(4) Where the authority—
(a) are satisfied that the applicant has a priority need, and
(b) are not satisfied that the applicant became homeless intentionally,
the duty under subsection (2) comes to an end at the end of the period of 56 days beginning with the day the authority are first satisfied as mentioned in subsection (1).
(5) If any of the circumstances mentioned in subsection (7) apply, the authority may give notice to the applicant bringing the duty under subsection (2) to an end.
(6) The notice must—
(a) specify which of the circumstances apply, and
(b) inform the applicant that the applicant has a right to request a review of the authority’s decision to bring the duty under subsection (2) to an end and of the time within which such a request must be made.
(7) The circumstances are that the authority are satisfied that—
(a) the applicant has—
(i) suitable accommodation available for occupation, and
(ii) a reasonable prospect of having suitable accommodation available for occupation for at least 6 months, or such longer period not exceeding 12 months as may be prescribed, from the date of the notice,
(b) the authority have complied with the duty under subsection (2) and the period of 56 days beginning with the day that the authority are first satisfied as mentioned in subsection (1) has ended (whether or not the applicant has secured accommodation),
(c) the applicant has refused an offer of suitable accommodation and, on the date of refusal, there was a reasonable prospect that suitable accommodation would be available for occupation by the applicant for at least 6 months or such longer period not exceeding 12 months as may be prescribed,
(d) the applicant has become homeless intentionally from any accommodation that has been made available to the applicant as a result of the authority’s exercise of their functions under subsection (2),
(e) the applicant is no longer eligible for assistance, or
(f) the applicant has withdrawn the application mentioned in section 183(1).
(8) A notice under this section must be given in writing and, if not received by the applicant, is to be treated as having been given to the applicant if it is made available at the authority’s office for a reasonable period for collection by or on behalf of the applicant.
(9) The duty under subsection (2) can also be brought to an end under—
(a) section 193A (consequences of refusal of final accommodation offer or final Part 6 offer at the initial relief stage), or
(b) section 193B and 193C (notices in cases of applicant’s deliberate and unreasonable refusal to co-operate).

The statutory code of guidance at 15.8 and 15.9 reads:

“15.8 Following inquiries, where the housing authority concludes that an applicant does not have a priority need, the section 188(1) duty ends when either:
a. the housing authority notifies the applicant of the decision that they do not owe a section 189B(2) relief duty; or,
b. the housing authority notifies them of a decision that, once the section 189B(2) relief duty comes to an end, they do not owe a duty under section 190 (duties to persons becoming homeless intentionally) or section 193(2) (the main housing duty owed to applicants with priority need who are not homeless intentionally).”

“15.9 So, an applicant who the housing authority has found to be not in priority need within the 56 day ‘relief stage’ will no longer be owed a section 188(1) interim duty to accommodate, but will continue to be owed a section 189B(2) relief duty until that duty ends or is found not to be owed.”

Mr M argued that section 188(1ZA)(b) applied. This meant that the interim duty to accommodate the Claimant could only come to an end upon the authority notifying the applicant of a decision that, upon the local authority’s duty under section 189B(2) coming to an end, the local authority do not owe the applicant any duty under section 190 or section 193 of the 1996 Act. Islington had provided no such notification. This was the position as set out in 15.8 of the guidance.

Islington argued that the s.188 duty only lasted until a s.184 decision was made. The s.189B duty was distinct but parallel, as a lessor duty to take reasonable steps to help the applicant secure accommodation. The s.184 letter told the applicant everything he needed to know about the cessation of the duty. Further, the guidance at 15.9 supported this.

The High Court held:

Section 188(1ZA) set out the circumstances in which the s.188 duty could be ended. It was common ground that s.188(1ZA)(a) did not apply, as Islington had not made a decision that the s.189B duty did not apply. That left s.188(1ZA)(b).

That required notification by the Council that once the s.189B(2) duty came to an end, no duty would be owed under s.190 or s.193.

On analysis, that requirement reflects the general logic of the statutory scheme as amended. The duties under section 190 or 193 of the 1996 Act are duties that are only owed by a local housing authority after its duties under section 189B(2) come to an end. Those are also duties which only apply to a person “in priority need”. If a local housing authority has determined that a person is not in priority need – which must be the case for section 188(1ZA) to apply – the authority will know that they will not owe that person a duty under section 190 or section 193 when the initial duty under section 189B(2) comes to an end. In this situation, section 188(1ZA)(b) also enables a local housing authority to bring the interim accommodation duty under section 188(1) to end. This can be done even where the duty under section 189B(2) to help the applicant to secure accommodation continues. But in order to bring the interim duty under section 188(1) to an end, the local housing authority is required to notify the applicant that it has decided that when its (different) duty under section 189B(2) comes to an end, it will not owe that applicant a duty under section 190 or section 193 of the 1996 Act.

In my judgment, the letter from the Defendant to the Claimant dated 5 October 2019 did not provide the type of notification set out in subsection (1ZA)(b). It did notify the Claimant that the Defendant had decided that he is not in priority need and gave reasons for that decision. It also notified him of a right to request a review. It therefore satisfied the requirements of section 184(3), (5) and (6) of the 1996 Act. But it did not comply with the notification requirement set out in section 188(1ZA)(b) by failing to inform the applicant of a decision that when the authority’s section 189B(2) duty comes to end, the local authority would not owe him a duty to provide him with accommodation under section 190 or section 193 of the 1996 Act.

I also do not consider the Secretary of State’s Code of Guidance alters the conclusions I have reached as to the statutory requirements. In fact, paragraph 15.8 generally reflects the requirements in section 188(1ZA). It is these statutory requirements that govern the position, rather than any summary of them in the Code of Guidance. The Code cannot alter the legal requirements of the statute. Paragraph 15.9 does seek to summarise the effects of those requirements, as the use of the word “so” suggests. But a summary is just that – it cannot be treated as a substitute for the statutory provisions themselves. I expect this paragraph was only intended to be read in that way. Like any gloss, it carries the risk of distortion if read too literally. In any event, it is not correct that a finding that someone is not in priority need of itself brings the interim duty to accommodate to end. Section 188(3) prescribes how that interim duty comes to an end. If paragraph 15.9 is to be interpreted in that way (and I am not convinced that it should), it is wrong.

The claim was successful, but on Islington having notified Mr M of the termination of the s.189B(2) duty, relief restricted to a declaration. Costs to Mr M.

Comment

A welcome clarification on the operation of s.188 after the Homelessness Reduction Act amends.

It is, of course entirely possible for a local authority to send a s.188(1ZA)(b) notification at the same time as a negative s.184 decision. That would function to end the s.188 accommodation duty, but leave the s.189B help to secure duty ongoing until the end of the 56 day period, while affording the applicant all their review rights. That, on the basis of this judgment is what should be done, at least during the s.189B period.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. martin morina

    But why this case made it all the way to the hearing i dont get it?

    Reply
    • Giles Peaker

      Because there was a live point. Islington only ended the s.189B duty after the hearing.

      Reply

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.