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The section 188(1) duty and the Homelessness Reduction Act

Toby Vanhegan looks at a recent High Court ruling on amendents introduced by the Homelessness Reduction Act 2017.

In R(Mitchell) v. Islington LBC [2020] EWHC the High Court held that in light of the amendments introduced by the Homelessness Reduction Act 2017, the section 188(1) duty to accommodate does not end on the making of the section 184 decision, but only in accordance with the amendments inserted into section 188 of the Housing Act 1996 ("the Act").    

The claimant first contacted the defendants for homelessness assistance on 15 June 2018. On 15 July 2018 they accepted that they owed him a duty under section 189B of the Act. On 22 August 2019 he made a formal application for homelessness assistance. By a letter dated 5 October 2019, the defendants made a section 184 decision which notified him that he was not considered to be in priority need. He requested a review of that decision and accommodation pending review which was refused. The claimant then argued that the section 188(1) duty still existed. The defendants replied that because they had found him not in priority need, he was no longer owed the section 188(1) duty. The claimant lodged a claim for judicial review challenging that decision. He had been evicted from his temporary accommodation on 14 October 2019 and was living with his brother in unsuitable circumstances.

Since this was a case where the defendants had found that the claimant was not in priority need, it was common ground that section 188(1ZA) applied. The defendants did not argue that they had decided that the section 189B(2) duty had ceased, and so it was also agreed that section 188(1ZA)(a) did not apply. The issue was whether section 188(1ZA)(b) was satisfied.

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The High Court held that although the section 188(1) duty used to end on the making of a section 184 decision, by virtue of section 188(3), this was no longer the case because that section had been amended. The amended section now provides that the section 188(1) duty ends in accordance with subsections (1ZA) to (1A), regardless of any review request. Now, the section 188(1) duty will end under section 188(1ZA)(a) if the authority have made a decision that they do not owe an applicant the duty under section 189B(2). The section 188(1) duty will end under section 188(1ZA)(b) if the authority notify the applicant that when their duty under section 189B(2) comes to an end, they will not owe the applicant any duty under sections 190 or 193 of the Act.

Although a finding that an applicant was not in priority need meant that he or she would not be owed a duty under sections 190 or 193 in any event, it was still important to inform the applicant that that would be the case when the section 189B(2) duty ended, so that the applicant knew that that duty would continue even after the section 184 decision had been reached. The defendants' section 184 decision did not meet these requirements and therefore the section 188(1) duty had not ended, and they were wrong to have decided otherwise.

Toby Vanhegan is a barrister at 4-5 Gray’s Inn Square. He appeared for the successful claimant in this case.

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