Case No. EWHC-185-(Admin)

160.Taking each of the parties’ list of agreed list issues in turn.161.When did the duty under s188(1) arise? In my judgment the duty arose around the 26th of August 2022 after the Claimant returned the forms requested by the Defendants. Before then the Defendants were reasonably awaiting clarification of the medical issues raised by the application in the light of the historic decisions taken that the Claimant needed one bed accommodation and day care, not two bed or 24 hour care and was improving in mobility. The Defendants have accepted the engagement of the duty. That is not in issue. The correct date of acceptance was not agreed. In my judgment the Defendants were thereafter in breach of their duty to offer suitable interim accommodation for a month (until 26.9.2022) and then properly accepted that the Claimant’s application engaged the duty under S.188(1) and offered temporary interim accommodation but the Claimant refused to move. That discharged or suspended the S.188(1) duty.162.Did the Defendants carry out non-statutory enquiries as those should properly be understood? In my judgment the Defendants did not carry out unjustified, unfair or unreasonable inquiries which would properly be classified as inappropriate and/or non statutory. They were seeking clarification of the issues which were longstanding in the light of their historic decisions and the new homelessness application and the Claimant’s assertions of medical, accommodation and care needs therein. In my judgment these were necessary for the Defendants to be able to clarify the issues which arose from the clash between the application and the Defendants’ own recent decisions. These were necessary to enable the Defendants to determine whether the Defendants had reason to believe the Claimant may have become homeless at home and may have had a priority need for 2 bedroom accommodation instead of 1 bedroom, whether he needed widened doorways because he could not weight-bear and could not use stairs and so may have needed to be accommodated elsewhere and whether there was a fire risk. 163.Was the Authority under a duty to notify the applicant that the duty under S.188(1) had arisen and was being performed by advising the Claimant to remain in his current accommodation? I consider that procedural fairness required the Defendants to inform the Claimant as soon as reasonably practicable after they had made the decision to accept the applicability of the S.188(1) duty. This the Defendants did on 26.9.2022 but in my judgment should have done on 26.8.2022 and so the Defendants did not properly discharge that duty. However this question does not arise from any pleaded ground of judicial review.164.Is it lawful in principle for an authority to discharge the S.188(1) duty by advising an applicant to remain in their current accommodation? In my judgment, if the evidence so permits, it is lawful for an authority to discharge their duty by advising the applicant that they consider that the current accommodation is suitable short term pending resolution of the inquiry on the main duty and other duties under the 1996 Act. I do so because I consider that the wording of S.206(1)(c) is sufficiently wide to encompass that interpretation as a method of discharging the duties under Part 7 and because of the rulings set out above in the case law: Ali; Edwards and Elkundi. 165.If so, was it lawful for the Authority to discharge the s188(1) duty by advising the Claimant to remain in his current property? In the light of the Defendants’ pre-existing decisions in relation to the Claimant’s housing needs and care needs, to the effect that he did not need two bedroomed accommodation or 24 hour care, could walk and would improve with physiotherapy, I consider that the decision which the Defendants took was within the scope of their reasonable discretion, save as to the fire risk. That part of the decision was both irrational and Wednesbury unreasonable in my judgment because the decisions on file did not support the Claimant being able to rush down 7 flights of stairs in case of fire. However such unlawfulness was irrelevant after 26 September 2022 because the Claimant refused to move when offered suitable alternative interim accommodation by Mr/Ms Anene.166.If so, was the decision that the current property was suitable in the short term irrational? I consider that it was irrational due to the fire risk.167.If not, is the decision now irrational because the short term has elapsed? I do not consider that the decision has become irrational as a result of the delay of 4-5 months because the issue at the root of the main determination is the medical evidence relating to the diagnoses and prognoses and the sequelae therefrom for each of the Claimant’s asserted disabilities. The Claimant has blocked the Defendants from investigating these by refusing to provide the medical notes and the names and addresses of his GP and his consultants. 168.I consider that if the Claimant had asked for the Defendants to rehouse him in suitable alternative interim one bed ground floor accommodation which is wheelchair accessible after 26 September 2022 that would have resuscitated the duty, but on the evidence before me he never did. He kept pressing for accommodation which he regarded as suitable to meet his unevidenced greater needs. 169.Is the Authority in breach of PSED? In my judgment the Defendants have carefully focussed on the Claimant’s disabilities save in relation to the fire risk. They have been frustrated in their ability to do so by the Claimant’s refusal to provide any medical evidence, notes, reports and treating doctors’ details so that proper information can be obtained and assessed. 170.What, if any, are the appropriate remedies? The Claimant seeks a declaration. The Claimant also seeks a mandatory injunction ordering the Defendant to provide suitable temporary accommodation. The draft order does not specify whether that would be one or two bed accommodation so it lacks particularity and will lead to more satellite litigation which will be expensive. 171.The Court’s power to grant a mandatory injunction flows from S.37(1) of the Senior Courts Act 1981. It depends on the “just and convenient” test. 172.The House of Lords set out guidance on mandatory injunctions in Co-operative Insurance v Argyll Stores [1998] A.C. 1. That was a case involving a business and the Claimant sought an injunction to force the Defendant to continue running it. Lord Hoffman listed inter alia four matters to take into account at para. 4. 173.