UO v London Borough of Redbridge (2024) EWHC 1989 (Admin)

We first saw UO and Redbridge in this judicial review of an unlawful housing needs assessment (HNA) and suitability decision. That decision was, to say the least, scathing about Redbridge’s decision making. So it is perhaps a surprise to see a further judicial review of Redbridge’s further HNA(s) and a suitability decision as to out of borough accommodation, not least because this judicial review decision includes judicial comment on Redbridge failing to take account of the evidence and findings in the previous JR. But that is what this is.

After the first JR judgment, in June 2023 Redbridge carried out a further purported HNA of Ms UO and her household, who were now in temporary accommodation in the borough. Redbridge also carried out a ‘move on’ assessment in August 2023.

The defendant’s conclusion was that it was not “essential” for the claimant to be accommodated with the Borough or a neighbouring borough as she did not fall within the Category 1 priority group (“Local accommodation only”) under the defendant’s “Placement and Resettlement Policy” (“the Policy”). The defendant determined that the claimant fell within Category 2 priority (“Priority for local accommodation”) whereby it is “highly desirable” to be accommodated within Redbridge or neighbouring boroughs.

Redbridge offered Ms UO a property in Slough, then a property in Enfield. The Enfield property was accepted and a suitability review requested. In the meantime the present judicial review had been issued, challenging the HNA and ‘move on’ assessments. When Redbridge’s s.202 review determined that the Enfield property was suitable in April 2024, Ms UO sought and was granted permission to add a challenge to that decision to the claim.

The court summarised the claimant’s factual position at the key dates as follows:

3 August 2023. The claimant and her children were living in Redbridge. All three children had been attending primary school in Tottenham, although the school year had ended. The claimant was a part-time teaching assistant working principally at schools in east and south east London. The claimant was studying at the Redbridge Institute for Level 1 qualifications in English and Mathematics.

14 April 2024. The claimant and her children were living in Enfield. The two youngest children, her sons, remained attending primary school in Tottenham. Her daughter was in her first year at secondary school in Redbridge. The claimant was working in Redbridge and Barking and Dagenham as a support worker with Age UK. The claimant was studying at the Redbridge Institute for Level 2 courses, attending them on Monday, Wednesday and Thursday. In October 2023, she had enrolled on a 3-year BSc (Hons) Business Management degree with foundation course at the London School of Management Education in Redbridge (Gants Hill), attending on Wednesday and Friday.

The challenge to the HNA, ‘move on’ decision and the suitability decision was primarily to Redbridge’s decision that UO was in the ‘Category 2’ group, who did not have priority for in-borough accommodation.

This was on the basis that:

a) the ‘Move on’ assessment was unlawful for the purposes of section 189A Housing Act 1996 and section 11(2) Children Act 2004
b) the suitability decision failed in its requirement to review Ms UO’s housing needs, and
c) the suitability decision was unlawful such that the defendant was in breach of its duty to provide suitable accommodation under section 193 Housing Act 1996.

On ground 1, the ‘move on’ assessment (based as it was on the June 2023 HNA), Ms UO argued that

The critical question is whether the claimant’s needs in respect of her education and employment and the educational and emotional needs of her children were lawfully assessed. They were not by ordinary Wednesbury standards. It was unreasonable and irrational to conclude that the claimant did not fall into Category 1 as it was essential for her to be accommodated within Redbridge or neighbouring boroughs. Part of the error comes from the mistake of fact in concluding that there was no known intervention from “well-being teams within the school”. There were. This is a relevant factor that was not considered. Further, there is a failure to consider the claimant’s personal circumstances and the fact that she lives alone with three young children. Finally, there was no or no adequate assessment of the claimant’s educational needs, which had been brought to the defendant’s attention and must affect the global analysis.

The Court agreed.

The HNA and ‘move on assessment’ wholly failed to acknowledge that there had been intervention from well-being teams within the children’s school.

In the recommendations of the HNA was this statement

Essential Educational Needs: None disclosed, none of client’s children are currently sitting examinations or are of critical schooling age. Head Teacher said that multiple moves would have a detrimental effect on the children’s education and wellbeing. There are no known intervention from wellbeing teams within the school as this was not disclosed by the Head Teacher.”

But counselling for the eldest child by a social worker/therapist had been arranged by the school, due to the perceived impact of multiple moves between hotels at an earlier stage. What is more, this was recorded n the judgment in the previous judicial review.

The question that Mr Olusola (officer on the ‘move on’ assessment – NL) should have engaged with is, given her receiving of therapeutic support, what risks may further instability to her life circumstances by moving out of her Redbridge home to an area out of the borough or its neighbouring borough produce and then that assessment should feed into the overall housing needs assessment. Mr Olusola’s artificially narrow focus at the expense of a proper analysis of the history and context is seen further on in the decision when he says:

“Head Teacher states that all is fine with the children now that the children and client moved into self-contained accommodation at (the Iford address).”

As noted by Ms T in her March 2023 statement, LO was going to start secondary school at the (the Redbridge School) in September, and Mr Olusola’s impugned decision specifically notes “In September 2023 LO is starting a new school at (the Redbridge School) High School.” Mr Olusola should have considered what the child’s history of well-being therapeutic support indicates about possible future risk from having to travel significant distances to reach her new school by being accommodated out of borough and how that impacts housing needs and priority. None of this was done and the documented history of therapy delivered to a plainly vulnerable child was ignored.

This was a significant failure.

Further, the move on assessment did not take sufficient account of the impact on Ms UO as a single parent.

Redbridge’s own policy stated that:

“Consideration will always be given to the particular circumstances of the applicant and the impact of moving to a new area.”

One of the “particular circumstances” of the claimant is the fact that she is a single mother bringing up three children aged between 4 and 12 years old on her own. This strikes me as being a factor that should have been engaged with properly by the defendant when assessing her housing needs and priority, if the analysis were on a truly individualised basis. It must have been entirely foreseeable to the defendant that moving to an area out of borough (or those neighbouring) creates the obvious risk of producing great strain on the claimant and her ability to cope. The defendant should have anxiously considered the realities of her situation if she would be confronted with extensive journeys to take the children to school and back and bring her daughter home, any resulting additional strain on her capacity to cope, and the consequent potential impact on her ability to care for her children.

Nor was there any consideration of the potential impact of out of borough accommodation on Ms UO’s education or the potential impact on her employment.

Overall, this rendered the decision unlawful

should the decision-maker not take account of considerations that are so obviously material, that has the capacity of rendering the decision overall unlawful, and that, viewed as a whole, is what has happened here. That applies to factors the relevance of which is plain both implicitly and those made explicit within the defendant’s policy and the Homelessness Code. I judge that it was unreasonable and irrational not to consider the factors identified above, and especially the history of trauma of the family and the children as manifested in behavioural changes, the distress of the claimant’s daughter, her receiving of qualified therapeutic support, the claimant’s personal educational and employment circumstances, and her status as a lone parent with three minor children.

On ground 2, the suitability review:

Ms UO argued that this replicated the failings of the August 2023 moving on assessment. In addition, the decision rigidly applied Redbridge’s policy view that children could move school if not at ‘a critical stage of education’ or with no SENDS in place, without taking account of the impact on the children.

The decision also failed to address the impact on MS UO of travel times to take her childrent to school, to her work and to her own education.

The Court found that the suitability review did uncritically accept and endorse the ‘moving on’ assessment. Again, (somewhat astonishingly – NL) there was a complete failure to pick up on the the eldest child having had well-being support arranged by the school as a result of impact of the previous moves in accommodation, despite it being in the previous judicial review decision.

Similarly the policy on position in relation to exams or SENDS had itself also been criticised in the previous judicial review judgment as ‘elevating a 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.” This judgment was obviously available to the review officer.

There was also a failure to enquire about pastoral care availability in Enfield schools, just an inquiry to Enfield about whether any places were available in schools in the borough.

The review decision also failed to make address to Ms UO’s position as a single parent, and whether travel times were reasonable in those particular circumstances. Ms UO had provided evidence of the actual times taken on the journeys to schools and work. The review officer had preferred the timings offered by google maps, without explanation. He:

assessed housing need and priority without using the plausible evidence provided to him by the claimant about the real-world extent of her regular travelling. Mr Bhattarai’s conclusion that the travelling demands were not unreasonable failed to take into account not just the actual travelling time involved, but the claimant’s lone parent status and the strain that balancing the exclusive caring responsibilities for three minor children imposes. One cannot insensitively apply general indicative times in a policy document without examining the “particular circumstances” of the individual, which is what the Policy requires.

On this ground, the court held

I judge that the defendant’s April 2024 assessment fares no better than its assessment in August 2023. The April 2024 assessment’s deficiencies included: the lack of analysis of the claimant’s lone parent status and its demands; the failure to engage with the significance of LO’s history of trauma, distress and need for well-being therapeutic support; the erroneous misstatement of the policy as whether the child was “in the middle” of such examinations; the undue weight placed on the lack of critical examinations, and its elevation into an unnecessarily rigid rule to the exclusion of the relevant wider particular circumstances of the children and the family; the failure to enquire with the claimant’s daughter’s current school about the likely disruption to her education and her levels of distress and ability to cope if she were to move in the midst of an academic year; the assumption of the existence of pastoral care without enquiring whether any attuned and appropriate pastoral support would be available for LO given her personal emotional and mental health difficulties; the lack of enquiry about whether the claimant’s two sons would be schooled together or separately, and if so, where; the failure to obtain any information about when the children might be able to start new schools.

On ground 3, it followed from the findings on ground 2 that the suitability decision was unlawful.

All three decisions were quashed, and would have to be re-made.

Comment

It takes a particular determination, when you are having to carry out a new HNA/moving on assessment or suitability review precisely because a previous HNA and suitability review were found unlawful in a judicial review decision, not to actually consider the factual findings and reasons for unlawfulness set out in that judgment. It takes yet further determination to effectively replicate the failings that made the previous decisions unlawful. But there we are.

What is particularly helpful in this judgment is that any address to the ‘particular circumstances’ of the household (as per Redbridge’s own policy and the homelessness code of guidance) should be holistic, not a checklist of threshold factors.

It is also worth noting that Redbridge’s defence on the review decision, that the claimant had not recommended further investigations, got short shrift, at least with regard to Redbridge’s Children Act 2004 obligations

As indicated, I am unpersuaded by the defendant’s argument that Mr Bhattarai had no need to make these enquiries of the Redbridge school because the claimant did not suggest making them – that seems to me to be in conflict with its duties of reasonable enquiry under Tameside and Plantagenet Alliance. The defendant has a statutory duty to have regard to the safeguarding and promoting of the child’s welfare, while not having to consider it as a “paramount” consideration (cf. on this section 1 of the Children Act 1989, which imposes a higher standard). I judge for the purposes of this case that child welfare is an important relevant consideration. Being seized with evidence from the previous proceedings and the judgment of the High Court about the distress the child had experienced and the therapeutic intervention she received, it is a false step to seek to responsibilise the claimant. While I am conscious of what Lewison LJ said in Abdikadir at para 52 that the court should be wary of imposing a duty on the reviewing officer to enquire into “matters that were not raised”, I cannot think that this relieves a local authority from considering its statutory duties, such as under section 11 of the CA 2004. In any event, these important issues were raised repeatedly by the claimant through Mr Ford’s comprehensive submissions.