Fatolahzadeh v London Borough of Barnet (Rev1) (2025) EWCA Civ 1174

A further Court of Appeal decision on whether an alleged failure to carry out a housing needs assessment under s.189A Housing Act 1996 of a homeless applicant invalidates subsequent decisions by the local authority. In this case, which was a second appeal from a s.204 appeal of a s.202 review decision as to the suitability of a property offered under Part VI Housing Act 1996, the question was whether the alleged failure to comply with s.189A invalidated the suitability decision (even on review) and whether the s.195 Housing Act 1996 prevention duty had been validly discharged.

The s.204 appeal of the suitability review in this case was wholly predicated on the alleged failure to carry out a housing needs assessment under s.189A. There was no challenge per se to the review’s conduct or findings, which had upheld the suitability of the property, after a ‘minded to’ notification noting a deficiency in the original decision.

The Court of Appeal reviews its prior decisions in Abed v City of Westminster (2011) EWCA Civ 1406 (our note) and Norton v London Borough of Haringey (2025) EWCA Civ 746 (our note), noting it is not bound by them, but would need good reason to depart from them.

First, Barnet had carried out a housing needs assessment. This did not have to be contained in one document, such as the personal housing plan (PHP), but the key was that the elements of the assessment would be available to any housing officer making an assessment of suitability. Ms F had had the opportunity to challenge elements of the assessment, and, for instance for the banding priority for the Part VI application, had done so.

The appellant’s case on Ground 1 is fundamentally flawed because it is based on the assertion that Barnet did not carry out an assessment of her housing needs. That assertion is unsustainable. Having heard all of the evidence, the Judge found that Barnet did make an assessment of the appellant’s housing needs. That finding was not merely one that the Judge was entitled to make – it was plainly right. As summarised above, having gathered preliminary evidence from the appellant and her son, Barnet conducted a telephone interview that addressed each of the three features required by section 189(2) as well as other matters that were relevant to an assessment of the appellant’s housing needs. The record of that interview was then sent to the appellant and her son for their agreement, which was forthcoming when they signed the post-interview declaration forms. The PHP was subsequently sent to the applicant: see [5]-[7] above.

It is plain that Barnet’s assessment of the appellant’s case did not end there. Specifically in relation to housing needs, Barnet consulted its Medical Team who provided the recommendations set out at [10] above. Those recommendations were incorporated in the statement of criteria for suitability in Barnet’s banding letter on 5 December 2022: see [11] above. When asked to do so, Barnet considered the appellant’s objections to her banding allocation: see [12] above.

The continuing process of assessment and having regard to that assessment was then illustrated by the steps Barnet took to ensure that the first property offered to the appellant was suitable, leading to the acceptance that it was not and withdrawal of that offer: see [13]. At no stage did the appellant suggest that the assessment disclosed by this course of dealing was deficient in relation to its assessment of her housing needs. Her objection to the proposed banding was not based on assessment of her housing needs; rather it was based on the assertion that her current accommodation (in respect of which she was threatened with homelessness) was uninhabitable. Her objection to the Avondale Avenue property was not based on a contention that her housing needs were wrongly identified; rather it was that the bathroom was on the first floor and she had a fear of chair-lifts. Barnet accepted that this rendered it unsuitable for her: see [13] above.

There had been no judicial review of the alleged failure to comply with s.189A, which was the proper route of challenge, and that left the administrative act as valid.

Second, there was an admitted deficiency in the original assessment with regard to location and travel, that had been cured by the review of suitability which had addressed these in detail in response to Ms F’s submissions. It was noted that the s.204 appeal had not been made on the basis of a deficiency or unlawfulness of the review decision itself.

Thirdly, while s.195(3) required the local authority have regard to their s.189A assessment, this did not invalidate a decision as to suitability – as per Norton v LB Haringey (2025) EWCA Civ 746

In my judgment, even if these passages from Abed and Norton are not formally binding on us, they provide very strong persuasive arguments by close analogy to which the appellant in the present case has no answer. Parliament has provided an additional remedy (over and above any remedy that may have been available in judicial review proceedings) which is designed to remedy specified deficiencies in decisions made by a local authority. It would, in my judgment be bizarre to the point of incoherence to impute to Parliament an intention that even an entirely faultless review decision could then be set aside because of the earlier deficiency which it has remedied.

The second ground – that the PHP was unlawful in the absence of a housing needs assessment – also failed. In context, the PHP was an adequate document.

Second, even if it had been deficient in some way, the issue that was reviewed at the appellant’s request was the issue of suitability, which was fully investigated and properly dealt with in the Review decision. Third, it would be wrong to impute to Parliament an intention that a deficiency in the PHP, if proved, should lead to invalidation of the Review decision.

Appeal dismissed.