Requirements of lawful housing needs assessment

Tuesday 12 July 2016

R (Smajlaj) v London Borough of Waltham Forest [2016] EWHC 1240 (Admin), Judge A Grubb, 26 May 2016

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R (S) v Waltham Forest LBC[2016] EWHC 1240 (Admin), Judge A Grubb, 26 May 2016

S was a single woman of Albanian origin who had been trafficked to the UK in May 2014. She spoke limited English and had a number of mental health problems and particular needs arising from her history of being trafficked, including symptoms consistent with post-traumatic stress disorder.

In October 2015, S applied to Waltham Forest as homeless. During the course of her application, representations were made on her behalf by her solicitors, drawing attention to some of S’s particular needs including the need for her to be accommodated somewhere where the specialist treatment she was receiving from the Helen Bamber Foundation could continue, and where she would not be at risk of isolation.

On 5 November 2015, Waltham Forest issued a decision under s184 Housing Act 1996 finding that S was homeless, eligible for assistance and had not become homeless intentionally, but that she was not vulnerable and so did not have a priority need. The decision letter acknowledged that, in view of this, Waltham Forest were under a duty under s192(2) Housing Act 1996 to provide S with advice and assistance to help her find accommodation, advising her to:

‘Kindly refer to the copy of the information booklet Housing Advice and Options in Waltham Forest that was given to you to assist you in your securing alternative accommodation’.

The letter indicated that S’s interim accommodation would be terminated in seven days.

S requested a review of the decision and accommodation pending review. In the alternative, Waltham Forest were asked to accommodate her under s192(3) Housing Act 1996, which contains a power to accommodate those to whom s192 applies.

Waltham Forest refused both requests for accommodation. S sought judicial review. Judge A Grubb (sitting as a Deputy High Court Judge) allowed her claim.

Under s192(4) Housing Act 1996, a local housing authority is required to carry out an assessment of a homeless applicant’s housing needs prior to providing advice and assistance under s192(2). An authority may discharge this duty by gathering the relevant information during the decision making process. That is, a distinct assessment is not necessarily required providing that the ‘nuts and bolts’ of the applicants housing needs have been ascertained already. See R (Savage) v Hillingdon LBC [2010] EWHC (Admin). While the legislation does not expressly provide that the assessment should be carried out prior to any decision whether to exercise the discretion to accommodate under s190(3), the requirement was implicit.

In this case, Waltham Forest had failed to assess the nuts and bolts of S’s very particular accommodation needs. As such the advice and assistance offered under s190(2), and the refusal to exercise the discretion to accommodate her under s190(3), were unlawful.

Click here for the judgment.


A helpful judgment that may breathe a new lease of life into these provisions, which in practice are often (purportedly) discharged by offering the homeless applicant a standard leaflet on accommodation options, as in this case, or a list of estate agents.

The points made in the judgment would presumably apply with equal force to the duty to assess an applicant’s housing needs under s190, which contains the duty owed to homeless applicants found to have become homeless intentionally.

In such cases, where the applicant has children, s11 Children Act 2004 would be engaged and the best interests of those children might well need to be considered as part of this assessment.

Interestingly, this is not dissimilar to the argument that was put forward (and rejected) in Saleem v Wandsworth [2015] EWCA Civ 780, [2015] HLR 38. Saleem might perhaps be distinguished on the basis that the points were raised in the context of a defence to possession proceedings and (as the Court of Appeal observed at [63]) no appeal was brought against the decision that Wandsworth had lawfully discharged its functions under Part VII Housing Act 1996. So the same reasoning would not necessarily apply to a judicial review challenge, to the discharge of the Part VII duties, as in Smajlaj.

The point might is certainly worth bearing in mind. Decisions under s190 involve evaluative judgments on the part of the decision maker and the exercise of discretion. And the welfare of any children is potentially of relevance to both the type of advice and assistance which the family requires under s190(2)(b), and the duration of any accommodation provided under s190(2)(a). In such cases, following Nzolameso v Westminster CC [2015] UKSC 22, [2015] HLR 22, it seems difficult to escape the conclusion that the best interests of the child should be considered.

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