Claimant wins appeal over lawfulness of housing needs assessment while care proceedings ongoing
The Royal Borough of Windsor and Maidenhead has lost a High Court judicial review case over whether it correctly assessed the housing needs of a family with two children who have severe disabilities.
Applicant SK brought the case, in which she argued the council failed to produce a lawful housing needs assessment and personalised housing plan for her and her children, as required by section 189A Housing Act 1996.
It had also needed to do this to comply with the duty, in section 11(2) of the Children Act 2004, to discharge its functions having regard to the need to safeguard and promote the welfare of children.
SK also argued that the council failed to comply with its duty under section 193 Housing Act 1996 to secure accommodation for her and her children was suitable as required by section 206 of that Act.
The council conceded SK was in unsuitable accommodation and that it was in breach of its statutory duty under section 193 and could not show that it took all reasonable steps to provide her with suitable accommodation.
It submitted though that no relief should be granted because, on 17 January 2024, it offered suitable accommodation and SK’s challenge to its suitability should be by way of an application for statutory review under section 202 Housing Act 1996.
Mrs Justice Lang noted in her judgment: “In the light of its concessions on Ground 2, and its desire to limit the expenditure on these proceedings, the [council] has agreed to produce a further joint HNA/PHP, whilst maintaining that the current joint HNA/PHP, dated 8 November 2023, is lawful.”
The court heard SK has eight children, four of whom are adults and live elsewhere. The other four are GZ, aged 18, JZ, aged 14, HZ, aged 13 and KZ, aged 12.
GZ and HZ are profoundly disabled with Pantothenate kinase-associated neurogeneration, a degenerative neurological condition, leading to an early death.
SK is a single parent, and has an exclusion order against her husband who lives nearby because of abusive treatment. However, she wishes to remain in the area because she has support from her family and GZ and HZ attend a specialist school in the area.
The council in May 2023 obtained interim care orders for JZ and KZ and the question of where HZ will live on leaving hospital became a core consideration in the care proceedings.
The judge said: “The claimant's primary criticism is that the current assessment only assesses the needs of SK and GZ. It does not include or assess any of HZ's needs, or those of JZ or KZ.
“The assessment (and consequently, the plan) proceeds on the basis that, as GZ is the only person currently living with SK, theirs are the only needs that fall to be assessed in the plan. This is wrong. A lawful assessment pursuant to section 189A HA 1996 ‘must’ include an assessment of the housing needs of the applicant and of any persons ‘with whom the applicant resides or might reasonably be expected to reside.”
She rejected the council’s case that the duty to assess persons with whom the applicant might reasonably be expected to reside only arises in the initial assessment, and not on review.
“Such a narrow interpretation could produce absurd results in those cases, such as this one, where there was a possible change in composition of the household in the near future,” she said.
It was obvious that some or all of the children might well return to live with their mother in the near future, and the assessment should have taken that into account as a possibility, Lang J said.
She said the first ground succeeded, but adjourned the ground concerning the suitability of accommodation until the conclusion of care proceedings in the Family Court.
Mark Smulian
