Case No. EWHC-185-(Admin)

150.The judicial review was started 4 days before the Claimant refused the Defendants’ offer of interim accommodation so the Claimant’s decision to stay put was made after the claim started. The judicial review claim was therefore not a change of mind. 151.In my judgment the S.188(1) duty could have been revived if the Claimant had changed his mind and notified the Defendants that he wanted suitable interim accommodation after 26.9.2022 or there had been an asserted change of relevant circumstances. But what is a real request and what was “suitable” in relation to such a request? Did the Claimant ask for ground floor one bed wheelchair accessible interim accommodation thereafter? There is no evidence that the Claimant ever changed his mind and told the Defendants that he would do so. He persisted with his claim that he was entitled to two bed accommodation, needed night care and needed wheelchair adaptation and access. So is that a change of mind sufficient to re-engage the duty to accommodate under S.188(1)? 152.In paragraph 56 of the Claimant’s Grounds of Claim it was asserted that the Claimant has continued to request alternative interim accommodation but no facts or details were set out supporting that. No relevant facts are stated in the “factual background” paras 5-13. Under procedural background the offer made by the Defendants of alternative accommodation in Northolt is mentioned. This was rejected by the Claimant as unsuitable. So I look to the Claimant’s witness evidence.153.In the Claimant’s 2nd witness statement dated 12.10.2022 he completely omitted to mention the conversation he had with the Defendants on 26.9.2022. He disputed the Defendants’ Personal Housing Plan restating the long running issues between the parties over the extent of his disabilities and needs. He made it clear he would only accept accommodation which had two bedrooms (one of which would be for his night carer), disabled access and disabled adaptations. In addition it would need to be in an area to which his carers could travel.154.In his third witness statement dated 13.12.2022 the Claimant stated he would accept suitable alternative interim accommodation if it was offered but the whole thrust of his evidence was that it would only be accepted if it was his chosen size. In relation to the offer of interim accommodation in Northolt he instructed his solicitors to reject it. So in relation to the correspondence in October 2022 about the Northolt property it is clear that the Claimant was only seeking a two bedroom wheelchair accessible and wheelchair adapted property from the Defendants, on an interim basis and at no stage did he state that he would accept a ground floor one bed or studio property with wheelchair access. 155.Thus the battle lines were drawn. The Claimant would not accept a one bed flat of any sort and the Defendants would not offer anything other than a one bed flat. The Defendants receded into the decision that the Claimant’s Park West flat was “suitable”, he being homeless at home and the Claimant proceeded with his judicial review seeking a two bed property.156.The real question here is whether the Defendants were and are under any continuing S.188(1) duty to the Claimant after they had already offered what they regarded as suitable interim alternative accommodation tailored to their medical evidence in the face of the Claimant asserting his needs were far greater on medical grounds but refusing to provide any medical evidence in support for the interim decision.157.This is not an easy decision. Disability is not to be taken lightly. It is serious and has far reaching effects. Disabled applicants are entitled to protection. However I do not consider that the S.188(1) duty did continue after 26.9.2022 unless and until the Claimant indicated that he would accept “suitable” wheelchair accessible interim accommodation on the basis of the Defendants’ medical assessment of his needs. The definition of suitable is firstly in the discretion of the Housing Authority which discretion is to be exercised lawfully and rationally. It can of course be reviewed. So for instance in this case if the Defendants consider that one bed (ground floor or fire safe) accommodation which is wheelchair accessible and to which his carers can reasonably be expected to travel would be suitable then that would be within the range of their discretion in my judgment. The Claimant does not agree. But the choice of number of rooms is not the Claimant’s in the circumstances of this case where he has failed to evidence reason to believe his need may be for more when the Defendants have a medical assessment to the contrary. So I consider that the duty was discharged on 26.9.2022 and has not been reactivated. 158.On the issue of whether the Defendants’ categorisation of the Park West flat as suitable is legal I consider that it is not, it is irrational due to the fire safety risk. 159.