Claimant wins High Court challenge to council over failure to secure suitable accommodation, conduct lawful assessment of children

The London Borough of Bexley failed to secure suitable accommodation for claimant ZRR in breach of section 190 of the Housing Act 1996 and failed to conduct a lawful needs assessment of her children under section 17 of the Children Act 1989, the High Court has found.

Judge O’Connor, sitting as a judge of the High Court, heard ZRR was aged 37 and lived with two daughters and her partner.

The oldest daughter suffers from mental health problems, and the young one has diagnoses of postural sclerosis and sensory processing disorder, while the partner suffers from anxiety, depression, suicidal ideation and bi-polar disorder.

ZRR and the other three residents were evicted by a private landlord and applied for assistance as homeless.

In April 2012, Bexley accepted ZRR was owed the main housing duty under section 193(2) of the 1996 Act and provided accommodation in Belvedere).

But in 2019 she fell into arrears and Bexley was granted possession of the property.These were later cleared, but she again fell into arrears and was evicted in February 2023.

ZRR again applied as homeless and Bexley concluded it owed her the relief duty under section 189B of the 1996 Act.

The council placed the family in interim temporary accommodation in Erith for 56 days. The accommodation was not self-contained; personal washing facilities were shared by more than one household.

ZRR told Bexley the Erith bed and breakfast accommodation was “completely unsuitable for the family’s needs” and instead moved in with her parents.

Bexley then said ZRR was intentionally homeless by having failed to pay rent on the accommodation in Belvedere.

In a further exchange, Bexley said it had offered temporary accommodation at the Erith bed and breakfast and would “not exercise its discretion to provide s.190 accommodation at this time”.

The council later notified ZRR of the outcome of the section 17, children, and family's assessment and ZRR challenged this as unlawful as there had been no, or no adequate, consideration as to what assistance would be provided to the claimant under the section 190 duty.

In his ruling, Judge O’Connor said in considering whether it was open to Bexley to conclude that a room at the Erith B&B was suitable accommodation “I have taken account of the transient nature of section 190 accommodation and, in particular, that the offer of accommodation was for only 14 nights.

“I also proceed on the basis that the claimant’s immediate family unit consists of her partner, and two children. The eldest child turned 16 years old on what would have been the 14th day of occupation in the Erith B&B, had the claimant accepted the offer. The claimant’s youngest child was 14 years old at the material time.”

Judge O’Connor said: “I have been hampered in my assessment of the rationality of the defendant’s decision by the absence of any reasoning either in the decision letter itself or provided ex post facto by way of a statement drawn for the purposes of these proceedings. Again, I observe that…the code states that,’case records should demonstrate that they have taken the statutory requirements into account in securing accommodation’. The court has not been provided with a copy of the defendant’s case notes.”

The judge said that given the family’s circumstances and the children’s health, “I conclude that no reasonable local housing authority could have found that [the particular room] of the Erith B&B was suitable to accommodate the claimant and her family, even for the limited 14 day duration proposed.

“In reaching this conclusion, I find the ages and mental health of the children to be highly relevant, with the mental health of the youngest child to be of particular significance…I further observe that there is no evidence before me from the [council]  seeking to justify how, taking account of the aforementioned matters, [the particular room] at the Erith B&B was found to be suitable accommodation.”

Turning to whether Bexley conducted a lawful needs assessment of ZRR’s children, pursuant to section 17 of the Children Act 1989, the judge rejected three of the eight contentions made but said the remainder did include grounds to find for ZRR.

This included that an analysis of whether to offer the family accommodation in Manchester was “flawed for failure to take lawful account of the youngest child’s education needs”.

Judge O’Connor said the most appropriate solution was a mandatory order, requiring Bexley to comply with its duty under section 190(2)(a) of the 1996 Act within 14 days.

A fresh assessment of the children’s needs was ordered within six weeks.

Mark Smulian