AN, R (On the Application Of) v London Borough of Barking and Dagenham (2025) EWHC 2265 (Admin)
This was a judicial review of i) Barking’s alleged failure to produce a lawful Housing Needs Assessment (HNA) as required by section 18(A Housing Act 1996, and ii) the alleged unlawfulness of Barking’s internal Temporary Accommodation Placement Policy document.
AN had applied to Barking & Dagenham as homeless. Her 7 year old daughter, EB, has Autistic Spectrum Disorder (ASD) and special educational needs (SEN).
She has impaired speech, communication, concentration, and sensory processing. She often becomes dysregulated by loud noises, crowded places, and sudden changes in environment. EB struggles to use public transport. She can become dysregulated when buses or trains are busy, or due to certain colour combinations, or because the seat she wants is not available. If EB’s journey to school is overwhelming for her, it impairs her learning at school.
EB has an education health and care plan (“EHCP”), a document prepared pursuant to Part III of the Children and Families Act 2014. The EHCP sets out her impairments and the special educational provision she requires, which include one-to-one support from a teaching assistant, regular short breaks, individualised and small group teaching, and speech and language therapy.
EB currently attends a mainstream primary school in Barking (the “Current School”) where she receives one-to-one support from two teaching assistants and attends booster sessions. The Current School is said to provide a valuable source of stability for her. She is making significant progress there.
Barking had eventually accommodated the household in a hotel, about a month after AN became actually homeless, and then in a hostel with a shared kitchen. Various put of borough (and out of London) properties were proposed by Barking, but mostly were not available.
Barking had been made aware of EB’s conditions and needs, in particular to be within a short commute of the current school, initial by AN, then by AN’s support organisation, by the school itself and then by AN’s solicitors. All had stressed that EB was not capable of a long journey to school, a single bus trip, due to her ASD and therefore the need for in-borough accommodation.
Barking produced no less than four purported HNAs, in December 2024, February 2025, March 2025 (after the issue of the present claim) and May 2025 (by permitted amendment to the claim).
Each was challenged on the basis that it dod not amount to a lawful assessment of the Claimant’s housing needs in accordance with s.189A HA 1996, read together with ss.205-210 HA 1996, s.11(2) of the Children Act 2004 (the “CA 2004”), and the public sector equality duty in s.149 of the Equality Act 2010 (the “PSED”)
A separate s.202 review of the suitability of AN’s accommodation was underway, and not (technically) part of this claim.
On the challenge to Barking’s internal policy, it was that it was unlawful in that it authorises, induces and/or approves its housing officers placing homeless applicants with dependent children in B&B accommodation for longer than 6 weeks, contrary to articles 3 and 4 of the 2003 Order.
On ground 1 – the HNAs, the Court held that each one was unlawful.
The December 2024 HNA simply did not address EB’s needs
The only “needs” identified are that the Claimant is a single parent with one child, and her budget. S.189A(2)(b) required the Defendant to assess the housing needs of the Claimant, including what accommodation would be suitable for her and anyone with whom she resided – in this case, EB. The educational needs of EB and any disruption to her education should she be forced to relocate were the “nuts and bolts”, or “key needs” for a lawful assessment. No mention, let alone assessment, is made of the relevance of EB’s ASD, her schooling, or the potential for disruption to her education and wellbeing should she be required to move school or undertake a lengthy commute.
The February 2025 HNA, read together with a ‘suitability assessment’ also provided to AN, also did not adequately address EB’s needs
Whilst the Suitability Assessment set out a number of potentially relevant facts regarding EB’s schooling, it does not provide any consideration or assessment of the Claimant and EB’s needs. The furthest the Suitability Assessment goes is recording the Claimant’s wishes with regard to proximity to EB’s school. In line with XY, ZK and YR, recording a “desire” is insufficient as an analysis of need. There is a complete absence of any reasoned assessment of what this family requires. For example, it conducts no consideration of what kind of commute would be appropriate.
Further, the Assessment states that EB has an EHCP and this “needs to be reviewed to determine if it is transferable”. The reference to a transfer indicates that moving school is possible.
The March 2025 HNA had the same failings as the December assessment.
The May 2025 HNA did mention EB’s ASD and ESN and that an ECHP was in place. But
the May Plan goes no further than identifying that EB receives support from her school, and that the Claimant has a wish to keep her enrolled there. Even read benevolently, a document stating matters as factual background does not thereby provide an assessment. Whilst the May Plan can be read as evincing an acceptance and acknowledgment by the Defendant of the importance of EB’s educational arrangements, it does not state explicitly, nor is it implicit, that the Claimant needs in-borough accommodation. The Plan also does not identify an appropriate maximum distance between EB’s school and a property that would be “suitable” for the family.
The highest the Plan goes is, as Mr Jackson put it, implicitly indicating the desirability of finding in-borough accommodation for the Claimant. I agree with Mr Jackson that this is not good enough: the Defendant needs to “nail its colours to the mast” and explain what it has assessed the Claimant and EB’s needs as being. Is there a need for accommodation to be provided within the borough or not? How far away from EB’s school can a property be located without being unsuitable, and why?
While it was not inconceivable that out of borough accommodation could be suitable if substantial investigations had been carroed out on the availablity of suitable educational provision in the area, such investigations should have been specified as steps in the HNA, and were not.
I do not exclude, at least as a theoretical possibility, that it might have been lawful for the Defendant to have identified the Claimant’s housing needs in terms under which accommodation outside the borough might be suitable if certain other conditions were first met. It may well be that EB’s educational needs are such that she would be better served by moving to a school with an ‘additional resource provision’ or SEN unit for children with ASD. The benefits to EB of moving to such a school could be sufficiently great as to make the disruption to her of moving schools (which would undoubtedly be difficult for her) a ‘price worth paying’ in the long run. That school could be the Other School in Barking (if EB were offered a place there), or it could potentially be a school in another borough, whether within or outside London. There might also be advantages to this family of moving outside of London, in terms of accessing lower rent levels that may make for a more sustainable housing solution in the longer term. But designing and implementing such a comprehensive package for this family could not be achieved by the Claimant herself; it would need to be done by the Defendant through diligent time-consuming internal activity involving close inter-departmental collaboration between its housing and its education departments, and in close consultation with the Claimant. There is high demand for places in specialist SEN settings, and EB and the Claimant would be dependent on the Defendant to secure such specialist provision for EB, in order that EB could move to the new school and, at the same time, the family could be provided with suitable accommodation within a needs-appropriate travelling distance from that school.
I have seen nothing within the witness statement of Mr Cimelli, or any of the other documents produced by the Defendant, to indicate that the Defendant’s housing department has been actively collaborating with its education department to secure such a comprehensive, but complex-to-implement, result.
None of the HNAs complied with the requirements of s.189A(2) and (9) HA 1996, or s.11(2) CA 2004. There was also, inevitably, a breach of the PSED because of the failure to consider disability under s.189A HA 1996.
All the HNAs were unlawful. The Court observes
In the context of extreme pressures on housing systems, it is critical for assessments to demarcate clearly what an applicant needs in terms of suitability (with the consequence that housing officers should not offer accommodation to the applicant which is incapable of meeting those needs), and what may be desirable. ‘Hedging’ between needs and desires deprives the HNA of its purported function, i.e. providing information to assist housing officers in properly allocating a suitable property, and enabling the applicant to understand what the local authority has assessed their needs as being.
On ground 2, the temporary accommodation policy, the relevant section read
“Wherever possible, the Council will limit the use of B&B accommodation placements for families with dependent children, pregnant women, and young people aged below 18. Where no other suitable accommodation exists and such placements are necessary, the Council will endeavour to move such households to more suitable accommodation within six weeks.”
AN argued this did not amount to an accurate statement of the 2003 Homelessness Order and unduly qualified the 6 week legal threshold (‘wherever possible, endeavour’).
The Court did not accept this.
Following R (A) v Secretary of State for the Home Department (2021) UKSC 37, there were three areas where the court would intervene to find a policy unlawful (A at 46)
“In broad terms, there are three types of case where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others: (i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (i.e. the type of case under consideration in Gillick); (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position.”
None of those applied in the present case. The policy was practical guidance, not a comprehensive statement of the law. Housing officers would e expected to be aware of the 2003 Order time limit in any event. And then
Reality compels me to acknowledge that, however familiar local authority housing officers may be with that body of legislation, there may be occasions when the authority’s duties under that legislation are not fully and immediately met in a homeless applicant’s case. There may, for example, be cases where the housing officer knows that the accommodation being provided to such a person is not “suitable” (perhaps because the 6-week limit prescribed by the 2003 Order has been exceeded), but there is simply no other accommodation available, and that which is available is better than leaving the person street homeless. In the Defendant’s borough, there may well be instances of housing officers’ endeavours to find alternative accommodation for families who have been in B&B accommodation for close to 6 weeks are unsuccessful, resulting in the 6-week limit being exceeded. I do not seek to excuse such breaches of duty by the Defendant, or to weaken the responsibility of the courts to uphold the absolute nature of local authorities’ relevant duties under the HA 1996 (as confirmed by the Supreme Court in R (Imam) v London Borough of Croydon [2023] UKSC 45). Where such breaches occur on the part of the Defendant, however, the cause of those breaches will be the limited accommodation resources it has made available to its housing officers, and not the diligent endeavours made by those officers in accordance with the Placement Policy to find alternative accommodation for the affected family.
This ground was dismissed.
On remedy, there was no lawful HNA. Barking’s proposal that it was to review the HNA on 31 October 2025 anyway, so no remedy was required was not good enough as it was 8 weeks away.
Since the time of the hearing before me, the Defendant has accepted that the Claimant’s current temporary accommodation is not ‘suitable’. But the Claimant and EB have remained in that accommodation. EB is therefore starting the new school year, this week, still having to commute from that unsuitable temporary accommodation. I note that the making of a lawful HNA is but the first step to a local authority subsequently finding and offering suitable accommodation under s.193 HA 1996.
Barking to produce an HNA by 1 October 2025.
On costs, overall, AN had lost on the discrete ground 2, so 70% of the costs of the claim to AN.