Former Grenfell resident fails in wide-ranging challenge to rehousing decisions

A former Grenfell resident has failed in a judicial review challenge against rehousing decisions made by the Royal Borough of Kensington and Chelsea in the years following the 2017 fire.

Mr Justice Kerr concluded that “no unlawfulness of any kind is shown merely because the outcome for the claimant is one bedroom less than he has been asking for”.

The High Court judge said the decisions challenged were:

1. the decision of 23 November 2021 to refuse to offer the claimant a three-bedroom property;
2. in the amended Statement of Facts and Grounds but not in the claim form, there was pleaded a failure to reconsider that offer of accommodation in light of further representations from the claimant's solicitors made on 2 February 2022;
3. by amendment, to the legality of the Grenfell Settled Home Policy implemented on 23 March 2022 (shortly after the acknowledgement of service was filed in this claim).

The background to the case was that in 2007, the claimant’s family moved to a flat on the 21st floor of Grenfell Tower. The claimant lived there with his wife and their two daughters, "L" and "M".

Mr Justice Kerr said: “As is well known, it was on 14 June 2017 that the terrible fire at Grenfell Tower occurred. The tower burned and many died and were injured and displaced, among them the claimant and his family.

“On the night of the fire, rescue services were unable to reach the family. They fled when the fire entered their flat and managed to escape. The claimant's wife and the children were critically ill on admission to hospital and placed in induced comas. The claimant's wife was seven months pregnant at the time and, very sadly, the baby died in utero. The family recovered apart from the unborn child.”

Under the Grenfell Rehousing Policy, the claimant and his family were to be provided with a three-bedroom property. However, the family asked for a four-bedroom property as they were planning to have more children.

Mr Justice Kerr said: “On 30 October 2017, this was approved by officers of the defendant as an ‘exception’, as the claimant's family were a bereaved household; it was considered reasonable to include the baby lost in utero and "given the trauma, that the girls have their own rooms”.

On 7 September 2018, the claimant's wife gave birth to another daughter, "K", who is now four and a half years old.

Mr Justice Kerr noted that in April 2019, the Grenfell Rehousing Policy was “again revised”.

At page 3 of the guidance document under the heading: "What size of property will you be offered?" the following appeared:

"When we look at the number of bedrooms you will need, we will use the same rules used by housing benefit. This means that children of the same sex will be expected to share until the eldest reaches 16, and that boys and girls will be expected to share until the eldest reaches 10."

In June 2021, the claimant and his wife separated. His wife and the children continue to live at the four-bedroom property, said Mr Justice Kerr.

He added: “The claimant now lives with his mother. His evidence is that the children are unable to stay with him at his mother's property because there are no spare bedrooms.”

On 6 July 2021, the claimant confirmed to the council that he had separated from his wife and had moved in with his mother; and requested housing support.

On 21 September 2021, the claimant's solicitors wrote a detailed letter to the defendant submitting that because of the separation of the claimant from his wife, the family should retrospectively be treated as a "split household" under the Grenfell Rehousing Policy and placed under the first band of priority on the basis of bereavement, owing to the loss in utero of their unborn baby.

The defendant responded on 23 November 2021. This is the “primary decision challenged in this judicial review”, said Mr Justice Kerr.

The email stated: “Whilst we would normally offer a single parent a one-bedroom property to allow their children to stay on occasion, we have made a further exception and agreed to offer your client a two-bedroom property to allow him the additional space taking into account his circumstances. Unfortunately, we cannot offer a further 3-bedroom property as this would result the family in having a total of 7 bedrooms between the two properties. Given the extreme shortage of available 3 bedroom properties, this cannot be considered for your client."

The eight grounds of challenge submitted were as follows:

1. The defendant failed to act in accordance with public statements as to how Grenfell survivors would be treated under the Grenfell Rehousing Policy.
2. The defendant failed to provide the claimant with accommodation as an exceptional case which accords with the underlying rationale of the split households policy.
3. The defendant failed to offer the claimant adequate accommodation when making an exception in his case in November 2021.
4. "Failure to act in the best interests of the Claimant's children", in breach of the defendant's obligation under section 11(2)(a) of the Children Act 2004.
5. The defendant's decision breaches the rights of the claimant and his children under article 8 of the European Convention, and that the decision was therefore unlawful under section 6 of the Human Rights Act 1998.
6. The defendant had failed to take account of material considerations.
7. The Grenfell Settled Home Policy "fails to take account of the Defendant's statutory duty under Section 11 of the Children Act 2004 to act 'having regard to the need to safeguard and promote the welfare of children'"; and is "fettered by its inflexibility"; and that the defendant "operates a policy which fails to enable the operation of discretion to take account of the needs of children who were traumatised by the Grenfell fire."
8. A free-standing allegation of irrationality or a Wednesbury allegation of unlawfulness.

Analysing the submissions, Mr Justice Kerr said: “I can see nothing unreasonable about that exercise of the defendant's statutory powers under the housing legislation and its own housing policies. Its decision did not breach any obligation under them. It struck a fair balance between the claimant's needs and those of others. The strength of the claims of others is not before the court and is a matter for the defendant, not the court.”

Mr Justice Kerr concluded: “Despite the sympathy for the claimant and his children which the court and all reasonable people must surely have, he has not come close to making out a case of unlawful conduct by the defendant and the claim must be dismissed.”