ZK, R (On the Application Of) v London Borough of Havering (2022) EWHC 1854 (Admin)

This was a judicial review of what was claimed to be Havering’s failure to provide a lawful housing needs assessment and personal housing plan for Mr ZK, under section 189A Housing Act 1996.

ZK, his wife and three young children has applied to Havering as homeless. The background to this was that:

ZK came to the UK as an asylum seeker having suffered appalling human rights abuses in his home country. The impact of these traumatic experiences has been significant and ongoing for his mental health and, as a result, he suffers from post-traumatic stress disorder (PTSD), anxiety and depression. ZK also has other health issues resulting from torture. As an asylum seeker, ZK and his young family were housed in a series of temporary accommodations across multiple London boroughs under the National Asylum Support Service (NASS) scheme. They were housed in the London Borough of Havering in NASS accommodation from November 2017. The constant moves through temporary accommodation were very unsettling for the Claimant and his family.

In January 2019, ZK was given refugee status with limited leave to remain. At that point, he became eligible for mainstream housing assistance under Part 7 of the 1996 Act. And he also applied to be admitted onto the social housing register under Part 6 of the 1996 Act. The Defendant accepted his Part 6 Application but put him in a very low priority band due to the short time he had been in the Borough. ZK challenged this banding decision through judicial review proceedings (the first judicial review) which were withdrawn when the Defendant accepted its policy was indirectly discriminatory against refugees on grounds of race and agreed that higher priority banding will be backdated for ZK (although the challenged policy remains in place).

In March 2019 the Defendant accepted that ZK was eligible for housing assistance under Part 7 of the 1996 Act as he was threatened with homelessness. It also accepted it had a duty to assess his housing needs (HNA) and provide him with a Personalised Housing Plan (PHP).

A first PHP was done while ZK was in initial temporary accommodation. ZK maintained the accommodation was unsuitable and requested a review of suitability, re-assessment of his housing needs and a new PHP. ZK maintained that the second PHP was also unlawful, and, as a result of settled judicial review proceedings, a third PHP was issued by Havering, which was the subject of this judicial review.

ZK remained in the temporary accommodation until June 2022, when the family were moved to other accommodation, no subject to a separate suitability review. But in January 2022, a Havering officer, Ms Williams, attended the previous property to assess its suitability. She fould it was not suitable because of:

a. The 26 steps up to the property which were a health and safety concern for the family, and
b. The distance from the previous accommodation to the children’s school which was a concern given both ZK and his daughter’s medical issues.

ZK has raised several other reasons why the previous accommodation was not suitable which he says reflect his and his family’s housing needs. In addition to the two reasons given by the Defendant, the Claimant says that the previous accommodation was unsuitable because it did not meet three other needs, he says he and his family have:

a. The need for secure and long-term accommodation
b. The need for reasonably quiet accommodation
c. The need for four bedrooms.

These were identified by ZK as being the five core housing needs of his household.

In 2021 ZK had provided Havering with significant medical evidence of the harmful effect of not having secure and stable accommodation.

ZK’s challenge to the lawfulness of the housing needs assessment (HNA) carried out by Havering, and the PHP, was on the ground that the HNA and PHO did not meet the mandatory requirements of section 189A, and/or took into account irrelevant considerations or failed to consider relevant considerations.

The High Court accepted that it was not necessary for an HNA and PHP to be in a single document. However, the question was whether the assorted documents relied on by Havering (the three PHPs, the Williams report, a support plan (not provided to ZK)) amounted to a lawful HNA.

In order to meet the statutory requirements, the HNA should, as per XY v London Borough of Haringey (2019) EWHC 2276 (Admin) (inexplicably not on Bailii or noted here – here is a precis),

however, set out the key needs: those that would provide the “nuts and bolts” for any offer of accommodation: c.f. R (S) v. Waltham Forest LBC (2016) EWHC 1240 (Admin) at (92).

It could not be said that the Havering documents did this

In my judgement there is an important distinction to be made between an applicant’s “needs” and an applicant’s “wishes.” While there may be some crossover between the two, it is clear that “needs” are required whereas “wishes” are merely desirable. A “reasonable and sensible housing officer” reading the claimant’s file should be able to understand what is needed as distinct from what would be ‘nice to have’ when considering the suitability of current or future accommodation. I have looked at the housing file as a whole, but, while there are observations relating to the core needs, I cannot see that these are clearly identified as “housing needs” accepted by the Defendant. In particular, the third PHP repeatedly uses the phrase “you have advised” in the basic assessment information section. A further section entitled “Wishes to resolve your housing situation” goes on to say: “Your wishes to resolve your housing situation: You stated the assistance which would be helpful would be helping you secure a suitable stability (sic) home for your wife and your children. You stated that you would like an extra bedroom to accommodate yourself due to your medical issues.”

(…)

Taking together the various PHPs and the Williams Report (the documents that were provided to ZK) I find that the distinction between the Claimant’s “wishes and desires” and his “needs” is not sufficiently clear as for it to be obvious to the “reasonable and sensible housing officer” what exactly is needed for the Claimant and his family to find and retain suitable accommodation. The three PHPs make reference to “housing wishes” and there are notes throughout the documentation making reference to issues the Claimant has advised about including health issues, information about his family and matters relating to the four core needs and the Claimant’s assertion that they need an extra bedroom. However, taken together, these observations do not amount to an assessment or identification of the Claimant’s housing needs that is accepted by the Defendant. For these reasons, in my judgement, the current file does not constitute an adequate and lawful assessment of ZK’s needs as required under s.189A of the 1996 Act.

(…)

Considering the documentation “holistically”, in my judgement it does not adequately set out the “nuts and bolts” of the Claimant and his family’s housing needs, as opposed to their wishes, such that a “reasonable and sensible housing officer” would understand what their key housing needs are in order to assess the suitability of current and future accommodation. As such, in my judgement, the Defendant has not fulfilled its duty under section 189A to provide the Claimant with a lawful HNA. In addition, the steps set out in the Third PHP were not sufficiently clear or relevant at the time and, as the current housing situation of the Claimant and his family is now substantially different, there is an ongoing requirement for a lawful PHP which is not currently met.

Havering had conceded that ZK’s list of housing needs were needs (save for the issue of the fourth bedroom). But this did not save the HNA overall, and indeed meant that there was no lawful current PHP.

The High Court declined to quash the third PHP, as it was not useful in view of the further PHP required, but granted a declaration that Havering had not carried out its duties under s.189A, and a mandatory order requiring a lawful HNA and PHP.

Comment

At a time when many PHPs appear to be boiler plate or cut and paste, this is a useful reminder that a housing needs assessment must address the applicant’s housing needs, as opposed to merely casting them  as wishes, and the resulting PHP must be based upon that.

Moreover, the position on needs and a plan must be kept under review and updated where there have been changes in circumstance.

The judgment cites the Homeless Code of Guidance, with emphasis:

11.10 When assessing the housing needs of an applicant housing authorities will need to consider the individual members of the household, and all relevant needs. This should include an assessment of the size and type of accommodation required, any requirements to meet the needs of a person who is disabled or has specific medical needs, and the location of housing that is required. The applicant’s wishes and preferences should also be considered and recorded within the assessment; whether or not the housing authority believes there is a reasonable prospect of accommodation being available that will meet those wishes and preferences.

11.11 An assessment of the applicant’s and household member’s support needs should be holistic and comprehensive, and not limited to those needs which are most apparent or have been notified to the housing authority by a referral agency. Housing authorities will wish to adopt assessment tools that enable staff to tease out particular aspects of need, without appearing to take a ‘checklist’ approach using a list of possible needs. Some applicants may be reluctant to disclose their needs and will need sensitive encouragement to do so, with an assurance that the purpose of the assessment is to identify how the housing authority can best assist them to prevent or relieve homelessness.