Our grateful thanks to Frank Bowmaker, pupil barrister at One Pump Court Chambers, for the following note of a section 204 appeal of a suitability review decision, on the issue of documents missing from the housing file, and the review not dealing with ‘in-borough’ support needs for the applicant’s disabled son.

Burke-Noel v London Borough of Lambeth. Central London County Court. 23 January 2025 (unreported elsewhere. A copy of the Judgment is here.)

The reasons duty, PSED and out of borough placements.

The Appellant (A) brought a successful s. 204 appeal against Lambeth’s (R) decision to discharge the main housing duty by offering her and her children out of borough accommodation.

Facts

A’s son (C) had a diagnosis of ASD, and an ECHP and other ‘special measures’ were being delivered at his school in Lambeth. A applied for homelessness assistance from R, which accepted the main housing duty and moved the family into temporary accommodation in Wimbledon.

R subsequently made a final offer of accommodation in Croydon. Before doing so, R’s Housing Officer, Mr Fredericks, had completed a Temporary Accommodation Suitability Assessment Form in which he answered yes to two questions: (i) ‘Does anyone in the household give or receive care that requires them to remain in Lambeth?’; and (ii) ‘Is anyone in the household in receipt of a significant care package or receiving specialist healthcare that cannot be transferred elsewhere and requires them to remain in Lambeth?’ (own emphasis).

A refused the offer. She argued that the accommodation was unsuitable because, among other things: (i) it was too far from C’s school, and (ii) it was in a poor condition due to the presence of a fire hazard. R purported to discharge its duty under Part VII of the 1996 Act, and that decision was upheld on review. The Appellant appealed under s.204 of the 1996 Act.

Decision

A succeeded on three grounds.

Firstly, HHJ Holmes held that the reasons for the suitability decision were insufficient. Two of his findings are of particular interest for practitioners:

• In respect of the fire hazard, the review decision relied on ‘photographic evidence’ and property information showing the layout of the accommodation, but neither had been disclosed with the housing file (at §28). A argued that the failure to provide this information was an aspect of the duty to give reasons, while R said that A’s criticism was a distinct challenge to its disclosure which required an amendment to the grounds of appeal. HHJ Holmes agreed that a ‘standalone’ challenge to the failure to retain documents would have required an amendment but continued that, ‘the court would be justified in looking rather more critically at the reasons given where the underlying material is not available’ (at §31). In these circumstances, a typical rationality challenge targeting the conclusions drawn from the evidence is unavailable; if there has been no relevant disclosure, it will be ‘difficult’ (or, it is suggested, impossible) for the Court to evaluate that argument, as recognised by HHJ Holmes (at §30). The alternative is to treat, as A did in this appeal, the disclosure failings as an aspect of the reasons duty. Neither A nor the Court could know the evidential basis of the review decision or, it followed, the reasons why the independent reviewer had reached the conclusion she did (at §30 and §33). This was insufficient.

• Regarding the location of the accommodation vis-à-vis the school, A was criticised for failing to provide express evidence that the distance was a problem for C (at §44). There was, however, a ‘curious’ and ‘unexplained’ feature of the case. In the Temporary Accommodation Suitability Assessment Form, Mr Frederick’s found that C was required to stay in Lambeth because his ‘significant care package’ and ‘specialist healthcare’ could not be transferred elsewhere, yet the evidential basis for that conclusion had not been disclosed with the housing file (at §46). It may have been open to the independent reviewer to reach a different conclusion on the evidence, but she was silent on the point (at §46 and §48). If she in fact disagreed with the original decision, that required an explanation, and the failure to do so was unlawful (§§48 – 49).

Secondly, HHJ Holmes found that R had breached s.208 of the 1996 Act, and it had failed to follow or explain how it had followed its own Placement Policy (at §§50 – 53). S.208 required R to secure accommodation within its district so far as ‘reasonably practicable’, and this was a stronger duty than reasonableness (Nzolameso v Westminster City Council (2015) UKSC 22; (2015) PTSR 549 (NL note) per Baroness Hale at §19). Again, the independent reviewer’s failure to consider Mr Frederick’s conclusions was fatal to its response to the appeal.

Thirdly, HHJ Holmes considered A’s ‘multifaceted attack’ under s.189A(2) of the 1996 Act, s.149 of Equality Act 2010, and s.11 of the Children Act 2004. All of A’s submissions were accepted. R’s assessment under s. 189A(2) was unlawful for failing to provide adequate reasons on the suitability issues (as above). In respect of the public sector equality duty (PSED), HHJ Holmes adapted the questions posed by Briggs LJ in Haque v Hackney LBC (2017) EWCA Civ 4 (NL Note) at §43 (at §61). Applying them to the review decision, R had failed to: (i) engage with C’s disability; (ii) consider his needs; and (iii) consider the impact of the move on C’s schooling (at §63). Further, PSED compliance in this case might have involved R seeking further information from C’s school or a medical professional (at §64), although this finding appears at odds with HHJ Holmes’ earlier criticism of A for not providing the same evidence (at §40 and §44). Significantly, the review decision’s general focus on whether ‘anyone’ in the household had been treated less favourably, rather than C specifically, was insufficient for the purposes of the PSED (at §64). Similar matters were relevant to the discharge of R’s duty under s. 11 of the Children Act (at §65).

Remedy

HHJ Holmes rejected R’s submission that he should decline to grant a remedy per s.204(3) of the 1996 Act and s.31(2A) of the Senior Courts Act 1981. The absence of the information before the original decision-maker and the independent reviewer, coupled with the failure to ‘fully and properly’ consider C’s disability, meant that it was impossible to say that the outcome was highly likely to have been the same (at §68).

Accordingly, the review decision was quashed.