UO v London Borough of Redbridge (2023) EWHC 1355 (Admin)

Ms UO and her 3 children, aged 11, 5 and 3, were homeless and had applied to LB Redbridge. The family had NASS accommodation in the Tottenham area since 2021, after NASS accommodation in Croydon and West Ham from 2019. Ms UO’s elder children were enrolled in school in Tottenham and the youngest in the nursery attached to the school. MS UO had connections in Redbridge herself.  Following Ms UO’s grant of asylum in 2022, the NASS accommodation ceased. She applied to Redbridge. The application stressed how important the children’s school was to them. She then did not hear anything from Redbridge until the day before her eviction from the NASS accommodation.

She was then told she would be provided accommodation the next day, but not told where. No questions were asked about her housing need or that of her children. Despite that, she received a document saying it was the Relief Assessment and Personalised Plan by email an hour later. The RAPP set out:

(i) the circumstances that caused the claimant to be homeless;

(ii) under “Housing Needs of the applicant”, it said: “Client has a 3 bedroom (sic) need”;

(iii) under “Housing Wishes of the applicant”, it said: “to be rehoused into alternative settled accommodation”;

(iv) under “Support needs of the applicant to acquire and maintain accommodation”, it said: “Client has savings to secure an AST but would benefit from assistance to find private sector accommodation”.

Ms UO was provided with hotel accommodation, initially a single room with two beds an hour and a half away from the children’s school. The family were then required to move to another hotel, two and a half hours from the school, despite Ms UO’s representations about the unsuitability of this. Redbridge then failed to respond to representations from the children’s headmaster and the family’s support worker about the unsuitability.

Redbridge then moved Ms UO to a further 7 different hotels in 4 months, none of which had cooking facilities or laundry services, and all of which were between one hour and two and a half hours from the school. Laundry, food and travel expenses used up Ms UO’s savings.

Redbridge’s “Accommodation Needs Assessment Officer contacted the claimant on 13 January 2023 regarding her income and expenditure, which led to an income/expenditure report being completed. However, the report omitted the claimant’s food costs, laundry costs and her rapidly depleting savings.”

The present judicial review was issued in January 2023.

In February 2023, Redbridge accepted the full housing duty, so that the hotel accommodation was under s.193(2), not s.188(1).

Ms UO’s solicitor requested a review of suitability at this stage.

In the meantime, from December 2020 to February 2023, Redbridge had made offers of (I presume) assured shorthold tenancies of three properties in Peterborough, a to bedroom and two three bedroom ones.These had been refused as unsuitable becuse of the children’s schooling. Redbridge’s suitability review of the first offer had simply

noted that “Property is not in reasonable distance of current school” but stated “it is reasonable to change schools as children are not in critical schooling age”. It also recorded that the Education Department in Peterborough had advised there is a school vacancy “for the year group but needs to check with the school directly for admissions”.

Ms UO’s subsequent refusals noted that her eldest child was imminently to sit her SATS and Redbridge had made no commitment that school places would be available.

After the last refusal of a Peterborough offer, Redbridge wrote purporting to discharge duty and stating

the “fact that you and your children do not have special educational needs and are not in key educational years, e.g. preparing for GCSE or ‘A’ level exams, means that the whole experience of moving home and starting fresh is likely to be far less disruptive than for other children in that situation who might need to remain in their current school to ensure that they have the best chance of completing their education without jeopardising their future life outcomes.”

The letter also noted that the claimant was not in employment and did not have any critical support needs to remain local; and that owing to the “acute shortage of accommodation locally, we need to prioritise local accommodation for those who have work commitments locally, and families who have children at critical stage of their education.”\

Ms UO’s solicitors applied to amend the grounds of the judicial review to include the Peterborough offer and discharge of duty.

The original grounds of judicial review (as amended) were

Ground 1: the initial Housing Needs Assessment (“HNA”) and Personalised Housing Plan, contained in the RAPP, were unlawful for the purpose of sections 188 and 189A of the 1996 Act, read with section 11(2) of the 2004 Act in that:
(i) The defendant failed to take sufficient inquiries to be able to identify or assess the claimant’s potential housing needs or determine what accommodation would be suitable for her household;
(ii) The defendant failed to identify and/or assess the claimant and the children’s housing needs regarding the location of accommodation;
(iii) The HNA and PHP were inadequately evidenced and reasoned to demonstrate that the defendant had had regard to relevant factors;
(iv) The defendant produced a PHP not informed by a proper assessment of need; and
(v) The defendant failed to take steps to agree or consult with the claimant on the PHP.
Ground 2: The defendant failed to conduct a lawful review of the claimant’s housing needs and the suitability of the hotel accommodation and Peterborough accommodation, as required by sections 188(1), 193(2) and 189A(9) of the 1996 Act read with section 11(2) of the Children Act 2004 (“the 2004 Act”).
Ground 3: The defendant’s suitability decisions were unlawful and/or the defendant is in ongoing breach of its duty to provide the claimant with suitable accommodation under section 188(1), and/or section 193(2) of the 1996 Act, read with section 11(2) of the 2004 Act in that:
(i) The decisions that the hotel accommodation and the Peterborough accommodation were suitable were vitiated in that they were based on an unlawful assessment, a lack of proper inquiries and/or an unlawful review;
(ii) The hotel accommodation was and is unsuitable within the meaning of section 206 of the 1996 Act on account of its distance from the School and lack of adequate facilities; and
(ii) The Peterborough accommodation is unsuitable within the meaning of section 206 of the 1996 Act on account of its distance from the School.

After the initial hearing on 28 March 2023, at which interim relief was given that Redbridge continue to accommodate Ms UO, there was a further application to amend by Ms UO’s solicitors, to include subsequent events.

On 19 April 2023, the claimant filed an application for permission to amend her grounds of claim. The purpose of the amendment was to put before the Court the up to date position of the claimant, who had been provided with further accommodation, since the first day of the hearing, in four separate hotels. At the date of that hearing, the family had been accommodated by the defendant in the Travelodge London City Airport. On 6 April 2023, the claimant was informed that the defendant intended to accommodate her and the family at the DoubleTree Hilton, Dartford Bridge. A day earlier, the defendant had sought to move the claimant and the family to the Travelodge, Chelmsford, which was over 35 miles from their then current hotel. The DoubleTree Dartford Bridge was a 40 minute walk from the closest shops and fast food restaurants. By train, it was one hour 51 minutes from the children’s school.

On 12 April 2023, the family was provided with accommodation in the Travelodge Enfield, which had only one double bed and one single bed for the claimant and her three children.

On 13 April 2023, the claimant and her family were relocated to the Travellodge Walthamstow, which is some 44 minutes by bus from the school.

This application was allowed. “I considered it self-evident that the Court required to be appraised of the continuing actions of the defendant in the provision of hotel accommodation, given that those actions were the subject of the claimant’s challenge in the proceedings.” Redbridge’s late attempt to get its policy on hotel accommodation into evidence was however refused, given their conduct in the JR so far.

Redbridge had:

Failed to file an acknowledgment of service in time.
Failed to file an acknowledgment of service by the extended date that it had requested.
Failed to serve its detailed grounds of defence and written evidence by the date ordered
Filed an acknowledgment of service and summary grounds of defence after all this, and applied for relief from sanctions

Redbridge was allowed to rely on the summary grounds of defence and to attend, but not allowed to file any further evidence, having breach the CPR and two court orders and as “fairness demands that the defendant is held to what appears to be its position; namely, that it has said all it intends to say by way of written submissions and evidence.”

The High Court found:

Ground 1

The Housing Needs Assessment was wholly inadequate

The defendant’s interactions with the claimant in November 2022 were entirely inadequate. In particular, the telephone call between the claimant and Ms Madureira on 7 November 2022 was cursory. No material questions were asked, yet the RAPP was produced immediately afterwards. The defendant made no inquiries with the school in Tottenham regarding the children’s educational needs and the potential disruption to their education of either having to commute very long distances or to change school during the academic year. The headteacher of the school had written a letter on 24 November 2022, which was sent to the defendant. There, the headteacher noted that stable housing matters more to LO in the present academic year “than in any other year of her life”. The impact on the claimant’s younger children was also regarded by the headteacher as a key factor.
The defendant’s position was, in effect, that because none of the children had special educational needs and none was taking GCSEs or A levels, there was no point in having any regard to what the headteacher was saying. This, however, is to elevate the defendant’s policy into a rigid rule and to ignore the fact that the references to GCSE’s and A levels, and to those with special educational needs, constitute examples of where particular consideration will be given to the needs of children, rather than an exhaustive list.

It is also plain that the defendant approached matters from the wrong starting point in that it wrongly had regard to the history of the family, whilst in NASS accommodation, as in some way justifying the defendant’s movement of the family between different hotels. That mindset was evident in Mr Abebrese’s oral submissions. As Mr Jackson submitted, however, it was equally if not more relevant that, in the light of that history, the claimant would be anxious to introduce some stability into the lives of her children. It also should have been obvious to the defendant that, as a parent, the claimant could not reasonably countenance moving the children from school to school, each time she was given accommodation in a fresh hotel. There is, in any event, nothing in the legislation or caselaw which permitted the defendant to benchmark the claimant’s needs by reference to what she had been provided with pursuant to a different statutory scheme.

The defendant has failed to adduce any evidence to show that it made any enquiries regarding the availability of accommodation nearer to the school or, indeed, alternatives to Bed and Breakfast accommodation, as required by the Homelessness Orders 2003 and 2012 and as dictated by the defendant’s own Policy. I agree with the claimant that, without having made such inquiries, no reasonable local authority would have been equipped with the information necessary to assess the housing needs of the claimant or what accommodation would be suitable for her and her children.

I also find that the defendant has failed lawfully to identify or assess the housing needs of the claimant and her children, as required by section 189A(2)(b) of the 1996 Act, read with section 11 of the 2004 Act. There is no reference in the RAPP to location, the needs of the children and the potential disruption to their education by their having to commute long distances to school or having to change school during the academic year.

As a result and for the other reasons, the Personal Housing Plan was also inadequate

All this meant that the RAPP did not lawfully consider “what accommodation would be suitable” for the claimant within the meaning of section 189A(2)(b). This, in turn, leads inexorably to the further conclusion that the RAPP was inadequately evidenced and reasoned. Finally, it is manifest that the defendant did not take any steps to agree or consult with the claimant on the PHP; nor that it recorded any agreement or lack thereof in that document. This is contrary to section 189A(4) to (6).

Ground 2

Given the information coming to Redbridge from the head teacher and support worker, it was unlawful for Redbridge not to have reconsidered the Needs Assessment and Personal Housing Plan, as a failure to take suitable steps of inquiry.

In addition, it is significant that no reviews were carried out in respect of any of the offers of hotel accommodation. In this regard, the defendant’s approach was, on each case occasion, dismal. The claimant was merely instructed to relocate without further inquiry or assessment and, in some instances, under threat of termination if she did not do so. The letters offering hotel accommodation did not make clear why the defendant considered the hotel in question to be suitable, taking into account the needs of the applicant: cf paragraph 17.6 of the Code. On the contrary, the evidence makes it plain that it was left entirely to the claimant to inform the defendant of the inadequate nature and/or location of the facilities in question.

On the first suitability review of the first offer of accommodation in Peterborough:

The suitability assessment was, however, produced after that offer. Be that as it may, I find the suitability assessment is unlawful for the following reasons. There is, again, no evidence that the defendant undertook any adequate enquiries, prior to its production. The only real engagement with the appellant in this regard was a telephone call, which was more in the nature of preparing the claimant for a move to Peterborough. Fundamentally there was, again, a failure to consider the suitability of a move to Peterborough in the middle of an academic year. All that is recorded in the suitability assessment on this matter is “it is reasonable to change schools as children are not in critical schooling”. The position of LO was not addressed; nor the evidence from the headteacher of the school in Tottenham. The failings I have earlier identified under ground 1 are, thus, present in the suitability assessment.

Mr Jackson accepts that the defendant’s inquiries with the Peterborough Education Department went some way towards showing that (otherwise) suitable arrangements would be in place to meet the children’s educational needs in Peterborough. The assessment recorded that the Peterborough Education Department had “advised that there is a vacancy at Lyme Academy Watergall for the year group but needs to check with the school directly for admissions”. Mr Abebrese submits this was all that was necessary at the time, given that (as transpired) the offer of accommodation of Peterborough might not be accepted by the claimant. I find myself in agreement with Mr Jackson, however, that the claimant could not reasonably have been expected to accept the offer if it turned out that the identified school did not, in fact, have any places for the children.

In addition, given Redbridge’s conduct in housing Ms UO after the permission decision and interim relief order, it was clear that Redbridge had still not carried out a lawful review of her housing needs, or of the suitability of the Peterborough offers.

On ground 3 and 4, suitability reviews and discharge decision, Redbridge argued that these should not be considered in the judicial review as the proper route was via s.202 review and s.204 appeal to the County Court.

The High Court, following R (Sambotin) v Brent London Borough Council (2017) EWHC 1190 (Admin) disagreed.

I am in no doubt that, in the particular circumstances of this case, I should not treat the availability of a statutory review under section 202 and/or an appeal to the County Court under section 204 of the 1996 Act as requiring grounds 3 and 4 to be dismissed or as justifying withholding any remedy in respect of the unlawfulness of the defendant’s suitability decisions.

It will be apparent from my judgment that grounds 3 and 4 are closely related to grounds 1 and 2. The defendant’s decisions that the hotel accommodation and the Peterborough accommodation were in each case suitable for the purposes of section 188 and/or 193 were made subsequent to, and were based upon, the defendant’s flawed assessment under section 189A and the defendant’s failure lawfully to review that assessment under subsection (9) of that section; as well the defendant’s ongoing failure to conduct adequate enquiries and suitability assessments under sections 188, 193 and 189A.

I also accept the claimant’s submission that for her to have to embark upon the review process would inevitably unnecessary further delay and the consequent unnecessary expenditure of further public monies.

The various hotel accommodation was manifestly unsuitable. So were the Peterborough offers, given the lack of consideration of the impact on the eldest child.

Since the defendant has failed to show that it undertook any (let alone legally sufficient) inquiries, the defendant simply cannot rely on the general premise (which I accept) is that there is an acute housing shortage in London. The defendant has failed to show what accommodation was available closer to the school in Tottenham and why it could not have been offered to the claimant. What was being sought by the claimant was accommodation within an hour’s commute by public transport to the school. That was not, or its face, unreasonable, so as to discharge the defendant from its statutory duty. Furthermore, if no three bedroom temporary accommodation was available within that area, a two bedroom property with a separate living room and kitchen would have avoided statutory overcrowding, whilst meeting the primary housing needs of the claimant and her family.

If there were no such self-contained accommodation within the relevant area, the defendant has failed to show that hotel accommodation could not have been sourced much closer to the school than the hotel accommodation actually provided, or the Peterborough accommodation. There is no evidence that the defendant considered these alternatives. On the contrary, the evidence discloses an unthinking, mechanistic series of decisions to move the claimant and her children to (what one must infer) was whatever happened to be the least expensive B&B facility which the defendant could secure with third party providers. Such an inference might have been avoided if the claimant had complied with the orders of the High Court and served evidence in a proper manner.

It followed that the discharge decision was also irrational as the Peterborough offer was not lawful.

The claim succeeded on all grounds

Comment

Another case in which a failure to carry out an adequate/lawful Housing Needs Assessment and provide an adequate Personal Housing Plan unravels all the local authority’s subsequent steps and decisions. It seems that many councils have still not yet grasped that the Homelessness Reduction Act duties need to be taken seriously and a failure at the early stage, unless subsequently corrected, will make much if not everything done subsequently unlawful.

In addition, we have to note that Redbridge’s approach to JR proceedings appeared to be on a par with their treatment of Ms UO. Late and careless. If councils hope to get away with the ‘it is so hard for us, we can’t find anything’ line, it is probably best not to antagonise the court by failing to comply with directions, such that you are prevented from putting in any evidence as to just how hard it is and why you had no choice but to act as you did. But then, it is pretty apparent that there was no specific evidence beyond broad hand waving to show that Redbridge had no choice but to go for distant hotels and a tenancy in Peterborough in purported discharge of duty.