YR, R (On the Application Of) v London Borough of Lambeth (2022) EWHC 2813 (Admin)

Ms YR had applied to Lambeth as homeless. Her household consisted of her three children and four of her sister’s children, A, her youngest child, is 6 months old; R is 4; Y is 7; B is 9; H is 12; J is 12; and S is 16. Ms YR is a Spanish national with pre-settled status, and Spanish speaking.

After becoming homeless in December 2021, she had been staying with a friend, but this could not continue. Following an approach to Lambeth, she was given temporary accommodation in a two bedroom flat in the borough, and the children were enrolled in schools in Lambeth. The accommodation was obviously overcrowded.  A formal homelessness application was made in July 2021, with a request for suitable accommodation, together with a request for assessment of the children as in need under section 17 Children Act 1989.

Lambeth carried out an interview and produced a purported ‘Relief Assessment and Personalised Plan’, supposedly in discharge of the duty to carry out a housing needs assessment and prepare a personalised housing plan under section 189A Housing Act 1996.

Lambeth then offered a four bedroom property in East Tilbury, Essex, as interim accommodation.

The Offer Letter stated: ‘We believe that the property is suitable for your occupation. We may take into account the interim nature of a placement when assessing whether or not it is suitable, as accommodation may be suitable for a few days or weeks that would not be suitable for a longer term placement. In making this offer we have taken into account information on your housing file, including our assessment of your housing needs.’ The letter warned the Claimant that if she refused the offer, the Defendant would cease to be under a duty to provide accommodation under s.188(1) and would not provide her with further accommodation whilst her claim was assessed. The letter recorded that because this was interim accommodation there was no statutory right of review under s 202 of the 1996 Act, but that ‘you can request an internal review if you consider the offer is unsuitable’.

Ms YR objected to the property, pointing out the time and cost of travel to central London, the disruption to the children’s education, the distance from her support network with her infant child, and the relative difficulty of obtaining employment as a Spanish speaker in the area. Lambeth maintained the property was suitable, and, after the issue of the judicial review, produced what was asserted to to be a review of housing need addressing these points. In the mean time, Ms YR had pointed out that her eldest child was starting year 11 and that Lambeth’s own Placements Policy meant that the household should have been in ‘Group B’ and prioritised “for accommodation within Lambeth and its ‘local area’ (namely, adjacent boroughs or within approximately thirty minutes travelling time on public transport from any Lambeth boundary)”

Ms YR went to the accommodation in August but by September (after the issue of the Judicial Review) was staying with her friend in Lambeth to enable the children to attend school. This was not viable in anything other than the very short term.

The grounds of judicial review were summarised by the Court into the following questions

(1) Whether the initial s 189A housing needs assessment and personal housing plan of 17 and 18 August 2022 were unlawful: Ground 1(i) and (ii), with elements of Ground 2.

(2) Whether the Defendant was in breach of its duty to carry out a review of the Claimant’s needs under s 189A(9), which requires consideration of the Suitability Assessment of 12 September 2022: Ground 1(iii).

(3) Whether the Defendant’s decision to provide ‘suitable’ accommodation under s 188(1), 206 and 208 was unlawful because it was based on an unlawful s 189A assessment and review: Ground 3(i).

(4) Whether that decision was unlawful because of a failure to apply the Placements Policy: Ground 3(ii).

(5) Whether that decision was irrational, read in the light of s 11(2) Children Act 2004: Grounds 3(iii), with Ground 2.

On (1) – the housing needs assessment and personal housing plan were unlawful.

First, there is no reference at all in the RAPP (which contains both the housing assessment and plan) to the needs of the children and the disruption that the provision of interim accommodation outside the borough, and a consequent move of school, would cause to their education. Those were ‘key needs’ for s 189A purposes, the ‘nuts and bolts’ of any lawful assessment, to adopt the phrase used in XY and ZK. I do not accept Mr. McDermott’s first submission that there is no general duty to assess the housing needs of the children as part of assessment of what accommodation will be suitable under s 189A(2) or, for that matter, under s 184 and s 188(1). Section 189A(2)(b) requires the assessment of what accommodation would be suitable for the applicant ‘and any person with whom the applicant resides’. This is reinforced by the Code of Guidance, to which the Defendant is obliged to have regard by s 182 of the 1996 Act, at paragraph 11.10 that an assessment under s 189A(1) must ‘consider the individual members of the household and all relevant needs’. The Homelessness Order 2012 sets out matters to which the Defendant is obliged to have regard when considering the suitability of accommodation by virtue of s 210(2) of the 1996 Act, including ‘the significance of any disruption which would be caused by the location of the accommodation to the … education of … members of the person’s household’. The educational needs of the children and the disruption of their education caused by relocating the family to another area are also matters to which the authority must have regard in the discharge of their welfare duty under s 11(2) Children Act 2004: Nzolameso, (27), R (E) v Islington LBC, (120). These are considerations an authority is statutorily obliged to take into account; they are not factors which it is for an authority to decide are or are not relevant, to be judged only by a Wednesbury standard: as to this distinction, see Sir Michael Fordham’s Judicial Review Handbook, 7th ed., (56.2). An authority must take these factors into account in every case where it is contemplating the transfer of a homeless school-age child to another borough, although the weight to be attached to them, and the inquiries that they must conduct in order to discharge that duty, will depend on the facts of the case and will generally be a matter for the authority to determine, subject to Wednesbury.

(…)

Second, in my judgment, the duty of assessment in s 189A and the duty to make inquiries under s 184 and s 188(1), read in the light of s 11(2) of the Children Act 2004 and Tameside, required the Defendant to conduct further inquiries: see above, paragraph 52.i). No reasonable authority with the information available to the Defendant would have failed to undertake inquiries as to the disruption to the children’s education if they were required to move school before concluding accommodation far from their schools was ‘suitable’ for the purposes of s 206 and that it was not ‘reasonably practicable’ to accommodate them in or near Lambeth. Moreover, those inquiries would also have needed to establish, if accommodation was to be provided by another council, that suitable arrangements were or would be in place for the children’s education in that council’s area, pursuant to the duty under s 11(2)(b) of the Children Act 2004, set out above, at paragraph 39. The Code of Guidance, paragraph 17.54, stipulates that in those circumstances an authority must liaise with the receiving authority and ‘make every reasonable effort to ensure arrangements are or will be put in place to meet the child’s educational needs’

There was no evidence that any such inquiries had been carried out.

Third, the housing assessment and plan were inadequately evidenced and reasoned to show compliance with the statutory duties.

Lambeth’s argument that the requirements for reasoning set out in Nzolameso v Westminster City Council [(2015) UKSC 22, (2015) PTSR 549 didn’t apply because that was about s.193 accommodation and s.202 review decisions was not accepted. S.189A created

a statutory duty to provide a written assessment and housing plan that is sufficiently reasoned to demonstrate that the authority has addressed the statutory matters in s 189A(2)(a)-(c), including ‘what accommodation would be suitable’ to the needs of the applicant and her household. In considering that question the authority must apply the test of ‘suitability’ in s 206: see s 205(3). The authority must also have regard to the matters required by s 210, including the Homelessness Order (disruption etc. to a child’s education), as well as the welfare considerations in s 11(2) of the Children Act 2004. Where, as here, s 188(1) accommodation is provided after, and in the light of, a s 189A housing assessment and plan, the reasoning in the assessment must also demonstrate that the authority has addressed the statutory suitability factors for the purposes of s 188(1).

In addition, the local authority must demonstrate that it has applied its placement policy properly, That requires a reasoned decision, even if not prescribed by statute. The Local Authority must also be able to show that it has fulfilled its duty to make further inquiries, and the inquires needed should be evident from the s.189A assessment. They were not here.

And the personal housing plan was unlawful because itself based upon a flawed and unlawful housing needs assessment.

On (2) – the review of needs under s.189A(2), this was also unlawful. The review had been conducted in September 2022. There was no address to whether there was accommodation available closer to Lambeth at the date of the review, as “required by s 189A(9) and paragraph 17.8 of the Code of Guidance”.

The review was also unlawful for a further failure to carry out the duty of enquiry.

I accept that an authority may generally expect an applicant to provide them with the information that the applicant considers to be relevant, particularly at the time of a review. I also accept that in assessing compliance with s 11(2) this Court should not be ‘too exacting’. However, the crucial question at the time of the review remained the impact on the children’s education of the move to East Tilbury. At the time of the Suitability Assessment the children remained at schools in Lambeth, but there was still no evidence of any approach being made to the schools for an opinion as to the impact a move to a new school would have on the children’s education and welfare. That is strikingly evident in the case of the eldest child, S. Mr. Ogwu did not know at the time he made his statement that S is taking her GCSEs this year (below, paragraph 105), which was a highly relevant factor, not least because the Defendant’s own Placements Policy gives households with such children priority for accommodation closer to the borough.

There remains the question of whether the Defendant complied with its Tameside duty for the purposes of s 11(2)(b) of the Children Act 2004 to satisfy itself that suitable arrangements were or would be in place to meet the educational needs of all of the children in Thurrock: see above, paragraphs 86-87. Mr. Ogwu did identify a number of schools local to the Property in his Suitability Statement. In his witness statement, Mr. Ogwu attests to the fact the Defendant’s social worker had ‘referred the family to Thurrock Council’. He cites an email from Thurrock Council to the effect that they had been in touch with the Claimant to discuss possible school placements, which I have read. I accept those steps go a long way to discharging the Defendant’s Tameside duty in the light of its duty under s 11(2)(b). But there is no evidence that there were (or are) school places actually available at any of the schools identified in the Suitability Assessment. In the generality of cases, an applicant with children can be expected to liaise with the receiving council to ascertain whether school places are available. However, the circumstances of this case are highly unusual: the applicant is not an English speaker; she is single; she has a young baby; she has no family or other support in Thurrock; there are six school age children for whom placements need to be made; even if places were available for all of them, if they are only available at different schools then it may be impracticable for the Claimant to ensure their regular attendance at school, as she is obliged to do by s 7 Education Act 1996; and the eldest child, S, is due to take her GCSEs this year. In those, very special, circumstances, I am satisfied that the Defendant could not reasonably decide either that the Property remained ‘suitable’ having regard to the disruption to the children’s schooling, or that it was not reasonably practicable for them to be accommodated nearer to Lambeth, or that the criteria in s 11(2)(b) were met, without satisfying itself of two matters. First, that school places were, in fact, available for all the children in Thurrock. Second, that it would be reasonably practicable for the Claimant to ensure that all the children could attend those schools. In the absence of evidence to that effect I conclude the Defendant failed to conduct the reasonable inquiries necessary to satisfy itself of those matters.

On (3), the s.188(1) decision that the offered property was suitable was also unlawful.

Firstly, Lambeth’s argument that a s.188(1) decision was separate to the s.189A assessment duties was not accepted.

The assessment of the Claimant’s housing needs, including the determination that the Property was ‘suitable’ accommodation, was in fact based on the authority’s s 189A assessment. The test of ‘suitability’ is identical whether s 188(1) is considered in isolation or in the light of an assessment under s 189A. To the extent that the assessment under s 189A was flawed, those flaws also undermined the s 188(1) decision as a matter of both fact and of law. It is immaterial if the s 188(1) decision was not one of the ‘steps’ taken under s 189B(2).

Secondly, the s.184 and s.188(1) inquiries were also inadequate.

In the absence of a lawful assessment and inquiries it was not open to the Defendant to conclude that: the Claimant only had a ‘wish’, not a ‘need’, to be located in Lambeth; the Property was ‘suitable’ for her and her family’s needs; it was not reasonably practicable to accommodate the Claimant in or near to Lambeth; or for the Defendant to demonstrate it had regard to the need to safeguard and promote the welfare of the children. The decision is vitiated for that reason also.

On (4) the Placement Policy was also not lawfully applied.

Lambeth had relied on emphasising that it had no 4/5 bedroom properties available in the borough (though Ms YR said a 3/4 bedroom property would be sufficient). While Lambeth was entitled to take into account local resources, a placement policy as to priority for in borough, near borough or more distant accommodation was required and had to be complied with.

Lambeth had wholly failed to consider the eldest child’s entry into year 11 at school, despite its policy, and any assumption in the review that the child might not be entering year 11 was a fundamental error of fact.

On (5) – the decision that the property was suitable was irrational

In view of the conclusions I have already reached, it also follows that the Council acted irrationally in deciding that the Property was ‘suitable accommodation’ for the purposes of s 188(1), taken with s 206 and s 208, read in the light of s 11(2) of the Children Act 2004, based as it was on inadequate and inaccurate information.

The remedy was to quash the needs assessment, personal housing plan, and the decision that the s.188(1) accommodation was suitable. A new needs assessment and plan would have to be carried out straight away.

As Lambeth had now accepted the full housing duty under s.193 was owed to Ms YR, there was no need for a further mandatory order. But a fresh assessment as to what accommodation is suitable for the s.193(2) duty would need to be carried out.

Comment

This is a very detailed and thorough judgment on the requirements of s.189A assessment and the impact on any decisions of the local authority that flow from, or rely upon, that assessment. The s.189A assessment duty has to be taken seriously and carried out properly.

It is also a useful decision on the obligation to provide reasoning on the personal housing plan and any subsequent decision (including a decision as to suitability of s.188 accommodation), and any review or updating of the needs assessment and housing plan.

Lastly, if there is a placement policy for priority for in borough/near borough/out of borough accommodation – and there certainly should be after Nzolameso – then it has to be adhered to!

As a postscript, the Court had stern words on presenting authorities and referencing unreported interlocutory applications.

I make two practice observations. Of the 29 case authorities provided to the Court in the bundle of authorities, 18 were in the form of official transcripts. All but two of these are either reported in the Official Law Reports, the Weekly Law Reports or in an authoritative specialist series of reports (the Housing Law Reports), copies of which should have been provided in accordance with Practice Direction (Citation of Authorities) (Senior Courts) (2012) 1 WLR 780. Also referred to was one case, R (Fokou) v Soutwhark LBC (2022) EWHC 1452 (Admin), an unreported judgment dismissing a renewed application for interim relief made prior to the grant of permission. This should not have been cited: as the Practice Direction (Citation of Authorities) (Senior Courts) makes clear, at paragraph 10, ‘an unreported case should not usually be cited unless it contains a relevant statement of legal principle not found in reported authority’. It did not. I would add that this principle holds true to an even greater extent in relation to judgments on unreported interlocutory applications.

So, consider yourself told.