Our grateful thanks to Miranda Grell of Staple Inn Chambers for this report of a section 204A appeal of a refusal to provide accommodation pending appeal, including counsel’s unapproved note of the ex tempore judgment. The refusal decison was quashed and, unusually, the Court made a mandatory order in its place.

PB v Royal Borough of Kensington v Chelsea. 05 June 2025 – Central London County Court – HHJ Holmes

Background to PB’s section 204A and 204 appeals

PB was a woman in her early 50s who suffered with a number of health conditions including Emotional Unstable Personality Disorder (“EUPD”) or Borderline Personality Disorder (“BPD”), anxiety and depression, claustrophobia, sleep apnoea, fibromyalgia (a chronic pain condition), severe back, knee and muscle skeleton pain, and a congenital heart condition called Wolff-Parkinson-White syndrome. PB also had a history of suicidal thoughts. All of PB’s medical conditions were documented in her medical records and she was known to mental health services.

Over recent years, PB’s housing situation had been extremely insecure. PB had been homeless – including street homeless – for many years. She had been assisted by churches, and other charitable organisations, with temporary accommodation in women’s shelters and homelessness projects.

In late 2024, PB issued an appeal against a section 202 review decision made by the Royal Borough of Kensington and Chelsea (“RBKC”) to discharge its main section 193 housing duty on the grounds that PB had refused an offer of a second floor flat, which RBKC maintained was suitable permanent accommodation. RBKC relied on a health and housing assessment from 2022 to state that the property was suitable. PB had contested that assessment’s findings.

PB’s case to RBKC about the suitability of the property – made in numerous written submissions before the section 202 decision – was two-fold.

Firstly, PB said that the social housing provider managing the property offered to PB had required her to sign up to a direct debit before it would allow her to attend a viewing. PB had queried why setting up a direct debit was necessary. RBKC told PB that her refusal to sign up to the housing provider’s “requirements” meant that she had rejected the offer. PB responded that she had not refused to view the property but had merely enquired why RBKC’s housing provider was requiring her to set up a direct debit to attend a viewing.

Secondly, PB had also queried whether the second floor property offered was suitable, given her physical health disabilities and a medical recommendation from her GP that it would be helpful if PB were offered ground floor accommodation or accommodation with only a few steps. PB further stated that due to her history of suicidal thoughts, RBKC had, in the past, accommodated her in a ground floor flat for her safety.

The request for PB to be accommodated pending the outcome of her section 204 appeal

PB’s solicitors requested that PB should be accommodated pending the outcome of her section 204 appeal. RBKC refused.

PB’s solicitors then made written representations in line with R v Camden LBC ex parte Mohammed (1998) 30 HLR 315 (Admin) (“Mohammed”), the leading case about what a local authority has to consider when deciding whether to exercise its discretion/power to accommodate an Appellant pending review (under section 188 of the Housing Act 1996) or pending the outcome of a section 204 appeal (under section 204(4) of the Housing Act 1996).

The three Mohammed limbs are:

1. The merits of the substantive (section 204 appeal) case;
2. New information or argument;
3. The personal circumstances of the Appellant.

Re the merits of the substantive case, the further representations made by PB’s solicitors set out the background to her substantive section 204 appeal, which was that she had been required to sign up to a direct debit to view the offered property and also that, given PB’s disabilities and history of suicidal ideation, the property was not suitable in any event.

PB’s new information or argument concerned a special oxygen machine given to PB by her local hospital, in respect of her sleep apnoea, which helped her breathe at night. The machine required electricity to function and/or charge and it needed to be kept in sanitary conditions free from fluctuations in temperature. PB had been able to use electricity sockets at the church night shelters to plug in the oxygen machine, but were she to become street homeless again, she would not have access to electricity or plugs.

Regarding PB’s personal circumstances, PB’s solicitors repeated the above.

Following receipt of the Mohammed written submissions from PB’s solicitors, RBKC continued to refuse to accommodate PB pending her section 204 appeal. RBKC said that PB could charge the breathing machine in local libraries during the daytime or ask the local hospital to give her portable batteries.

PB’s solicitors issued a separate section 204A appeal.

The section 204A appeal hearing on 05 June 2025 at Central London County Court

PB’s section 204A appeal hearing took place before His Honour Judge (“HHJ”) Holmes at Central London County Court on 05 June 2025.

In addition to arguing that PB satisfied the three Mohammed criteria, PB’s barrister relied on the Court of Appeal case of Khelassi v Brent LBC (2006) EWCA Civ 1825 (“Khelassi”) and submitted that PB’s personal circumstances were ‘exceptional’, and therefore satisfied R v Brighton & Hove ex p Nacion (1999) 31 HLR 1095 (“Nacion”), (which held that a local authority should only exercise its discretion to accommodate an Appellant pending appeal, when their circumstances are ‘exceptional.’)

In Khelassi, the Court of Appeal had considered an application from a man suffering from depression, where there was also evidence of suicidal ideation. The Local Authority, without offering reasons, preferred the opinion of a general practitioner whose opinion was that the man was not vulnerable.

At paragraph 22 of Khelassi, the Court of Appeal endorsed the County Court’s decision that Mr Khelassi was vulnerable and stated: “I agree….that the local authority’s duty is to make such inquiries as necessary…I further agree…that the decision as to what inquiries are necessary is primarily a question for the decision-maker, not for the court. What is necessary will depend on what is at stake. Where a significant risk of suicide is in issue a great deal is at stake.”

PB’s barrister argued that PB’s history of suicidal ideation, coupled with her special night-time breathing machine for her sleep apnoea, and combined with all of her other serious and chronic medical conditions meant that PB’s circumstances should be considered ‘exceptional’.

The judgment

HHJ Holmes gave the following ex tempore judgment (Counsel’s unapproved note)

“This is an appeal under section 204A. About whether the local authority has a power to exercise its discretion. It’s an appeal on a point of law. It’s not a question about what the court should do. It’s a question about the decision is open to challenge on public law principles.

Camden v Mohammed. Mr J Latham sets out the 3 criteria.

This is a woman with very substantial medical conditions. In the March 2025 decision letter, there is reference to Wolff-Parkinson-White syndrome and hoarding. There are a substantial number of issues. Chronic pain and suicidal ideation.  

The general thrust of the Respondent’s section 202 decision is that someone who has substantial problems and has a machine should be using that machine in a church or, when that project came to an end, to use it on the street and charge it in a public space in a library to make use of it again. That is a surprising decision for a local authority to take and does not look enormously attractive. This is not a decision in and above itself.

The exceptional nature of the circumstances required have been set out in other cases. However well-expressed and convincingly put forward they may be, if the conclusions are ones that no reasonable authority would come to, it is not one where this decision could be sustained. This is about the serious health issues that this Appellant has and her needing a source of power to use her machine.

Merits of the case – the court should not be delving too deeply. That’s what is being said by Mohammed. It’s about setting out the history of how the matters were dealt with before.  

There is a power carved out a particular power for the courts to deal with these types of cases. The High Court in a Judicial Review would need to be satisfied that the case is ‘arguable’. The (Housing) 1996 Act does not have that filter in place. However, it is necessary to set out a filter mechanism, otherwise every single person who appeals would need to be housed. It seems to me that what is being said in Mohammed has to be seen in that context. Mohammed invites the court to decide whether the appeal is hopeless or finely balanced.

This is a curious appeal re what is said about the criteria the housing provider had re a direct debit. It is an unusual criteria for a housing provider to have in place before a property is even viewed. The second issue is about a health and housing assessment, which was two years old and whether that was a reasonable assessment for the local authority to rely on. To say that there is little merit in the section 204 appeal is to be wide of the mark.

The second Mohammed criteria – to consider the new information or argument that could have a real effect. 

The personal circumstances – and consequences to the Appellant. This is a person with significant physical and mental health conditions. Ms Grell has correctly identified suicidal ideation. It must be given significant weight. This does not appear to have been done (by the Respondent).  

I refer to Khelassi. What (local authority) inquiries are necessary are about what is at stake. It was necessary to obtain more information in Khelassi. The need for a decision-maker and a court to look carefully at circumstances where suicidal ideation is in play. The Respondent (in this case) has underestimated them. Someone with chronic pain is going to be adversely affected.

Back to the sleep apnoea machine and (the Respondent’s position) that it can be carried around. I must consider the practicalities of that and of the machine failing. The risk of the machine not working. None of those matters are weighed with sufficient care in any of the Respondent’s decision letters. Its second letter was wholly unconvincing.

I quash the decision.”

Court’s decision about whether to make a mandatory order that the Appellant be accommodated pending her section 204 appeal

Following his decision to quash RBKC’s decision not to accommodate PB pending her section 204 appeal, HHJ Holmes invited submissions from the parties’ counsel on whether he should make a mandatory order, under section 204(4)(6)(a) of the Housing Act 1996, that RBKC accommodate PB pending the outcome of her section 204 appeal.

Section 204(4)(6)(a) of the Housing Act 1996 states that a court may only make such an order if it ‘satisfied that failure to exercise the section 204(4) power in accordance with the order would substantially prejudice the applicant’s ability to pursue the main appeal.’

Counsel for RBKC relied on Quadir v Tower Hamlets LBC, 3 March 2011 (2012) April Legal Action, p.47, Central London Civil Justice Centre, which held that: ‘The appeal itself was on a point of law, and the grounds of appeal, skeleton argument and evidence had all been prepared. There was little for the claimant to do except wait for the hearing. Even if there was some prejudice, it dd not amount to substantial prejudice.’

PB’s barrister relied on the unreported case of SN v LB Waltham Forest (5 September 2016. Central London County Court) (“SN”). (https://nearlylegal.co.uk/2016/09/circumstances-consequences-accommodation-pending-review/)

In SN, HHJ Hand KC had held that personal circumstances were capable of tipping the balance in an appellant’s favour – regardless of the merits – and that he was satisfied that substantial prejudice would be caused to SN’s ability to pursue her appeal if he did not make the order. HHJ Hand KC made the mandatory order under s.204(4)(6).

Judgment on whether to make a mandatory order under section 204(4)(6)(a) of the Housing Act 1996 that RBKC accommodate PB pending her section 204 appeal

Having considered the submissions of both Counsel in PB’s case, HHJ Holmes ruled that although PB had so far been able to engage with her solicitors whilst not accommodated by RBKC pending appeal, the issue would be the risk to PB’s ability to continue engaging – and whether she would be ‘substantially prejudiced’ in this regard if her health deteriorated, given her history of suicidal ideation and current fibromyalgia.

HHJ Holmes was satisfied that there would be a risk of ‘substantial prejudice’ caused to PB if he did not make the mandatory order.

HHJ Holmes stated that the need for PB to use a breathing machine at night, her other physical health conditions and her mental health difficulties – particularly suicidal ideation – was sufficient for him to make the mandatory order.

The judge ordered RBKC to accommodate PB pending her section 204 appeal.

RBKC did not seek permission to appeal either the judge’s order to quash its section 204(4) decision or his mandatory order to accommodate PB pending her substantive section 204 appeal hearing currently listed for November 2025.

Miranda Grell of Staple Inn Chambers represented the Appellant instructed by Alan Mullem of Moss Beachley Mullem & Coleman solicitors