Case No. EWHC-185-(Admin)

of the decision90.By S.184(3), on completing their inquiries, a local housing authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform the applicant of the reasons for their decision. Indeed littered throughout the Housing Act 1996 are other notification provisions but there is no notification requirement in relation to S.188(1). The Main Duty to accommodate91.The highest duty owed to applicants is the main housing duty under S.193(2) and applies to those who are eligible for homeless assistance, in priority need and not intentionally homeless. It provides that “Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.” This duty is immediate as the case law below explains.The “Relief Duty” to help to secure temporary accommodation92. S.189B applies where a local housing authority is satisfied the applicant is homeless and eligible for assistance. In these circumstances they must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for occupation for at least 6 months or such longer period not exceeding 12 months as may be prescribed [the “Relief Duty”].Duty to provide interim accommodation for priority need applicants93.By S.188(1), if the local housing authority has “reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they must secure that accommodation is available” for the applicant's occupation. This is over and above the Relief Duty. 94.This S.188(1) duty may arise at the same time as the acceptance of the Part 7 application or later. Chapter 15 of the Code provides inter alia that:“15.5: The threshold for triggering the section 188(1) duty is low as the housing authority only has to have a reason to believe (rather than being satisfied) that the applicant may be homeless, eligible for assistance and have a priority need.” 95.Once the housing authority is satisfied that there is “reason to believe that an applicant may be homeless, eligible for assistance and have a priority need,” the S.188(1) duty has been described as immediate, non-deferrable and must be offered upon the duty arising, see the judgment of Hickinbottom J in R (Edwards) v Birmingham City [2016] EWHC 173 (Admin) at paras. 40-41 and the reasoning of Lewis LJ in R (Elkundi and others) v Birmingham City Council; R (Imam) v London Borough of Croydon [2022] EWCA Civ 601; [2022] QB 604 which was a decision in relation to the s193(2) main duty.96.Before both of those cases, in R (Kelly) v Birmingham CC [2009] EWHC 3240 (Admin) (unreported) at para. 7, Hickinbottom J had summarised the low threshold test for providing interim accommodation under s188(1) as follows: “7(i) An application under Part 7 of the 1996 Act can be in any form, and need not be in writing…” “7(iii) In the meantime, if an authority has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they are under aduty to provide that applicant with temporary accommodation…”.“7(iv) … In considering whether their duty under Section 188 is engaged, the authority's starting point is consequently the information provided by the applicant himself. If that gives rise to reason to believe that the applicant may be homeless, eligible for assistance and have a priority need, then the duty to provide interim accommodation arises. In addition to the phrase “reason to believe”, I emphasise the word “may”, which again underscores the low hurdle an applicant has to surmount to engage the Section 188 obligation…”“7(iv)… An authority cannot defeat the prompt engagement of Section 188 by introducing filters or delays, e.g. by making non-statutory enquiries …”97.I shall consider below whether this ruling prevents a housing authority from clarifying the application where they already have in their possession a considerable file which contains relevant decisions which contradict the foundation of the assertions in the application that the applicant makes to engage the S.188(1) duty.Discharge of Duty under s188(1)98.Section 205(1) refers to S.206 for a definition as to how the S.188(1) housing functions “may” be discharged “only” in three ways:“206(1) A local housing authority may discharge their housing functions under this Part only in the following ways— (a) by securing that suitable accommodation provided by them is available,(b) by securing that he obtains suitable accommodation from some other person, or(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.”99.Paragraph 16.9 of the Code gave guidance on the words “secured” in section 206(1)(c) and stated:“…where an authority has a duty to secure accommodation, they will need to ensure that the advice and assistance provided results in suitable accommodation actually being secured. Merely assisting the applicant in any efforts that they might make to find accommodation would not be sufficient if suitable accommodation did not actually become available.”Applicants who refuse offers of suitable alternative interim accommodation100.Paragraph 15.22 of the Guidance deals with applicants who refuse accommodation and states: “15.22 Where an applicant rejects an offer of interim accommodation (or accepts and moves into the interim accommodation and then later rejects it), this will bring the housing authority’s interim accommodation duty to an end - unless it is reactivated by any change of circumstances.”Communication of decision on S.188(1) application/duty101.There is no statutory requirement to notify the S.188(1) decision. However in my judgment it is a principle of procedural fairness that a person liable to be directly affected by an administrative act, such as the making of an offer of accommodation, should be given notice of what is proposed. In Pathan v Secretary of State for the Home Department [2020] UKSC 41 [2020] 1 WLR 4506, an immigration case which concerned a failure to notify the revocation of an employer sponsor licence, Lord Kerr and Lady Black held at para. 131 that:“We are of the view that the duty to give notice of a decision to someone who will be adversely affected by it cannot be denied solely by the consideration that it is pointless for that person to make representations with a view to reversing or avoiding the effect of the decision. The duty to give notice is an accepted element of the duty to act fairly”.102.The Claimant asserted in submissions that Pathan is of wider application because it underlines the principle that there is a duty to give notice to an applicant of a decision which he has the right to challenge or review – otherwise there is procedural unfairness. An applicant’s right to appeal and review a decision is in my judgment also undermined if notification is not given.103.No ground of review persists in relation to the former complaint (in the original grounds) of a failure to inform the Claimant when the Defendants had decided that the S.188(1) duty was engaged therefore I make no ruling on this issue. Nothing turns on this issue either. The Defendants accepted the S.188(1) duty and notified the Claimant of that on 26.9.2022.PSED104.The public sector equality duty is set out in s149 of the Equality Act 2010. “149Public sector equality duty(1)A public authority must, in the exercise of its functions, have due regard to the need to—(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”105.In addition by S6(1) Equality Act 2010. P has a disability if—(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.106.The general principles underlying the public sector equality duty are summarised by Briggs LJ in Hackney LBC v Haque [2017] EWCA Civ 4; [2017] HLR 14. That case concerned the suitability of accommodation. The PSED was intended to bring equality issues into the mainstream. The duty is to have ‘due regard’ to the equality goals which are: (i) the need to eliminate discrimination, (ii) to advance equality of opportunity between persons who share a protected characteristic and those who do not, and (iii) to foster good relations. Having ‘due regard’ to these aims is not a tick-box exercise, but is one of substance. It can be performed even when a public officer does not know of its existence. The obligation is to have ‘due regard’ to the broad aims, it is not a duty to achieve a particular result. Its purpose is to encourage public authorities to keep in mind the PSED goals.107.In Lomax v Gosport Borough Council [2018] EWCA Civ 1849; [2019] PTSR 167 Lewison LJ at para. 43 and Coulson LJ, at para. 57, held that when considering whether it would be reasonable for a disabled person to continue to occupy accommodation, the local housing authority should demonstrate a sharp focus on: the extent of the disabilities; the likely effect of the disabilities when taken together with any other features so long as they continue to occupy the property; the applicant’s particular needs in relation to accommodation which arise from their disabilities and the extent to which their current accommodation meets those needs. There should also be a comparison between the applicant’s accommodation needs and the accommodation needs of people without their particular disabilities. Finally there should be a recognition that when considering whether it was reasonable for him to continue to occupy a property the applicant might need to be treated more favourably than others without their disabilities. Case law108.In Birmingham v Ali [2009] UKHL 36, on appeal from R (Aweys) v Birmingham, the relevant four Claimants applied to the housing authority (HA) for accommodation based on asserted homelessness under Part 7 of the Housing Act 1996. Each either had a large family or was suffering disrepair. The HA asserted that they could leave them homeless at home until the final decision under S.193 and made an allocation decision about how fast they would get permanent housing. The judicial review claim was successful and the judge granted declarations and mandatory orders. The HA’s appeal to the Court of Appeal was dismissed. In the House of Lords the HA’s appeal was granted. In summary the “suitability” under S.193(2) of the temporary accommodation – homeless at home - had a temporal element (short term). It could be suitable despite it not being reasonable for the Claimants to continue to occupy longer term. Incidentally the judge’s decision on the allocation policy as unlawful was upheld but that is not relevant to the case before me. 109.Baroness Hale gave the lead judgment. The following passages are relevant:On S.188(1):“17… If the authority have reason to believe that an applicant “may be homeless, eligible for assistance and have a priority need”, they must secure that accommodation is available for his occupation pending a decision as to what duty is owed: section 188(1). Priority need is then defined, and includes families withdependent children: section 189(1)(b).”On suitability:“18Whether the authority are securing interim accommodation under section 188(1) pending a decision, or securing accommodation after the decision has been made under section 190(2) or 193(2), they may provide the accommodation themselves or secure that it is provided by someone else. However, the accommodation secured has to be “suitable”: the 1996 Act, section 206(1). In deciding what is “suitable” the council must “have regard” to Parts IX and X of the Housing Act 1985 and Parts 1 to 4 of the Housing Act 2004 (which relate to slum clearance and overcrowding) and also to matters specified by the Secretary of State: the 1996 Act, section 210(1) (as amended by section 265(1) of and paragraphs 40 and 43(a) of Schedule 15 to the 2004 Act) and (2). Clearly, however, what is regarded as suitable for discharging the interim duty may be rather different from what is regarded as suitable for discharging the more open-ended duty in section 193(2); but what is suitable for discharging the “full” duty in section 193(2) does not have to be long-life accommodation with securityof tenure such as would arise if the family were allocated the tenancy of a council house under the council’s allocation policy determined in accordance with Part VI of the 1996 Act. It is expressly provided that a person who is secured accommodation under Part VII of the 1996 Act does not become a secure tenant unless the council say so: the 1985 Act, Schedule 1, paragraph 4.”Defining the issue:“21Considering the issue:“38In the Birmingham case, this interpretation has the advantage that the council can accept that a family is homeless even though they can actually get by where they are for a little while longer. The council can begin the hunt for more suitable accommodation for them. Otherwise the council would have to reject the application until the family could not stay there any longer. The likely result would be that the family would have to go into very short-term (even bed and breakfast) accommodation, which is highly unsatisfactory.39It also has the advantage that the family do not have to make repeated applications. If their application is rejected on the ground that it is reasonable for them to stay one more night, they cannot apply again until there is a different factual basis for the application. How are they to judge whether the council will consider that the tipping point has been reached, when this is such an uncertain event?” Determining the issue:“41This then feeds into the duty under section 193. As Lord Hoffmann said in R v Brent London Borough Council, Ex p Awua [1996] AC55, 68:“there is nothing in the Act to say that a local authority cannot take the view that a person can reasonably be expected to continue to occupy accommodation which is temporary . . . the extent to which the accommodation is physically suitable, so that it would be reasonable for a person to continue to occupy it, must be related to the time for which he has been there and is expected to stay.”Those observations were directed to the question of when it ceases to bereasonable for a person to continue to occupy accommodation in the contextof the meaning of “accommodation”, but they apply equally to the point atissue here.42Given that an authority can satisfy their “full” housing duty under section 193(2) by providing temporary accommodation (which must of course be followed by the provision of further accommodation, so long as the section 193(2) duty survives), these observations clearly do not only apply to section 188. They emphasise that accommodation which may be unreasonable for a person to occupy for a long period may be reasonable for him to occupy for a short period. Accordingly, there will be cases where an applicant occupies accommodation which (a) it would not be reasonable for him to continue to occupy on a relatively long-term basis, which he would have to do if the authority did not accept him as homeless, but (b) it would not be unreasonable to expect him to continue to occupy for a short period while the authority investigate his application and rights, and even thereafter while they look for accommodation to satisfy their continuing section 193 duty.”And:“46However, another tool is now available and in our view it is proper for a local authority to decide that it would not be reasonable for a person to continue to occupy the accommodation which is available to him or her, even if it is reasonable for that person to occupy it for a little while longer, if it would not be reasonable for the person to continue to occupy the accommodation for as long as he or she will have to do so unless the authority take action.47This does not mean that Birmingham were entitled to leave these families where they were indefinitely. Obviously, there would come a point where they could not continue to occupy for another night and the council would have to act immediately. But there is more to it than that. It does not follow that, because that point has not yet been reached, the accommodation is “suitable” for the family within the meaning of section 206(1). There are degrees of suitability. What is suitable for occupation in the short term may not be suitable for occupation in the medium term, and what is suitable for occupation in the medium term may not be suitable for occupation in the longer term. The council seem to have thought that they could discharge their duty under section 193(2) by putting these families on the waiting list for permanent council accommodation under their Part VI allocation scheme. But the duty to secure that suitable accommodation is available for a homeless family under section 193(2) is quite separate from the allocation of council housing under Part VI. There are many different ways of discharging it, and if a council house is provided, this does not create a secure tenancy unless the council decides that it should. As we have already pointed out, the suitability of a place can be linked to the time that a person is expected tolive there. Suitability for the purpose of section 193(2) does not imply permanence or security of tenure. Accommodation under section 193(2) isanother kind of staging post, along the way to permanent accommodation in either the public or the private sector.48Hence Birmingham were entitled to decide that these families were homeless even though they could stay where they were for a little while. But they were not entitled to leave them there indefinitely. There was bound to come a time when their accommodation could no longer be described as “suitable” in the discharge of the duty under section 193(2).” On the practical effects of the ruling: “49… While the council were entitled in principle to leave the families in their current accommodation for a period notwithstanding that it was accepted that that accommodation “would [not] be reasonable for [them and their families] to continue to occupy” (section 175(3)), it must be a question, which turns on the particular facts, whether, in any particular case, the period was simply too long. However, the basis upon which the applicants in the Birmingham cases argued their claims (and succeeded before Collins J and the Court of Appeal) meant that it was unnecessary to consider the detailed facts of their respective cases. Accordingly, once that line of argument is rejected, there is no longer any basis for a decision in their favour. 50It is right to face up to the practical implications of this conclusion. First, there is the approach to be adopted by a court, when considering the question of whether a local housing authority have left an applicant who occupies “accommodation which would [not] be reasonable for him to continue to occupy” in that accommodation for too long a period. The question is of course primarily one for the authority, and a court should normally be slow to accept that the authority have left an applicant in his unsatisfactory accommodation too long. In a place such as Birmingham, there are many families in unsatisfactory accommodation, severe constraints on budgets and personnel, and a very limited number of satisfactory properties for large families and those with disabilities. It would be wrong to ignore those pressures when deciding whether, in a particular case, an authority had left an applicant in her present accommodation for an unacceptably long period. 51None the less, there will be cases where the court ought to step in and require an authority to offer alternative accommodation, or at least to declare that they are in breach of their duty so long as they fail to do so. While one must take into account the practical realities of the situation in which authorities find themselves, one cannot overlook the fact that Parliament has imposed on them clear duties to the homeless, including those occupying unsuitable accommodation. In some cases, the situation of a particular applicant in her present accommodation may be so bad, or her occupation may have continued for so long, that the court will conclude that enough is enough.”110.7 years later in R (Edwards) v Birmingham [2016] EWHC 173 (Admin) Hickinbottom J was determining a judicial review claim. The claimant, Edwards, who applied under Part 7, had a one bed flat on the 3rd floor of a block with no lift. She made a homeless application when she was a few months pregnant. She was not disabled. She was interviewed and said she did not want interim accommodation but then applied for judicial review asserting that she did. When given hostel accommodation she stayed a few nights then complained and went to live with her mother. When provided with an unsuitable 4th floor flat in a block with no lift she stayed with her mother. Suitable alternative accommodation was eventually provided. Hickinbottom J dismissed the judicial review claim save as to the unsuitable 4th floor flat. He ruled as follows:On the duty to provide interim accommodation: “23Sections 184 and 188 therefore set out the interim duties on a housing authority where it has reason to believe that an applicant may be homeless, namely a duty to make inquiries to ascertain if the applicant is in fact homeless and (if so) in priority need; and, if the authority has reason to believe the applicant may be homeless and in priority need, to provide him and his family with accommodation in the meantime, whilst those inquiries are being pursued. The duties are “interim” in the sense that they are imposed from the time the authority has a reason to believe the relevant matters, until they determine the homeless application.” (my emboldening). In relation to the Guidance code:“34With regard to the duty to provide interim accommodation, the Code says(emphasis in the original):“6.5 If a housing authority has reason to believe that an applicant may beeligible for assistance, homeless and have a priority need, the authority willhave an immediate duty under s.188 to ensure that suitable accommodation is available for the applicant (and his or her household)pending the completion of the authority’s inquiries and their decision as to what duty, if any, is owed to the applicant under Part VII of the Act. Chapter 7 provides guidance on the interim duty to accommodate. Authorities are reminded that ‘having reason to believe’ is a lower test than ‘being satisfied’.…6.6 Applications can be made by any adult to any department of the localauthority expressed in any particular form; they need not be expressed asexplicitly seeking assistance under Part VII ……7.3 The threshold for the duty [to provide interim accommodation] is low asthe local authority only has to have a reason to believe that the applicant maybe homeless, eligible for assistance and have a priority need. (See paragraph6.5 for guidance on the ‘reason to believe’ test.)”In relation to the threshold:“39Turning to the second threshold condition, paras 6.5 and 7.3 of the Codespecifically emphasise that the local authority only has to have a reason to believethat the applicant may be homeless to trigger the duty to inquire (under s.184), and reason to believe that the applicant may be homeless and in priority need to trigger the duty to provide interim accommodation pending those inquiries (under s.188). That threshold is low and, indeed, clearly low by design, in view of the vulnerable individuals it is intended to protect (see R. (M) v Hammersmith and Fulham LBC [2008] UKHL 14 at [36] per Baroness Hale). It is a hurdle patently lower than the authority “being satisfied” as to the fact of those matters (which is the s.193 threshold in respect of the applicant in fact being homeless, in priority need and not intentionally homelessness, which triggers a final, full duty to accommodate).”In relation to delaying interim accommodation Hickinbottom J ruled thus: 40That low threshold has to be considered in the context of another propositionthat derives from both the Code (especially paras 6.5 and 6.16: quoted at paras33–34 above) and the authorities, that, once an effective application has been made and the authority has reason to believe that the applicant is or may be homeless or threatened with homelessness, s.183 is engaged and the provisions that follow (including the duties to inquire and, if the authority has reason to believe the applicant is or may be in priority need, to provide interim accommodation) become immediately effective (see, e.g. Rikha Begum at [49] per Neuberger LJ). An authority is not entitled to defer or delay these duties, to allow time (e.g.) to persuade the individual to mediate (Robinson v Hammersmith and Fulham LBC [2006] EWCA Civ 1122 at [42] per Jonathan Parker LJ, and at [45] per Jacob LJ), or to engage in inquiries outside the statutory scheme into whether the applicant is indeed homeless etc (R. v Harrow LBC Ex p. Fahia [1998] 1 W.L.R. 1396 at 1401G –1402F per Lord Browne-Wilkinson; and Rikha Begum at [61] where Neuberger LJ referred to “the manifest disapproval in Fahia of non-statutory inquiries”). Once the authority has reason to believe that the applicant is or may be homeless or threatened with homelessness, a duty to make the statutory inquiries required by s.184 immediately arises and they cannot engage in non-statutory inquiries designed to (or which in fact) emasculate, dilute or “short-cut” the statutory requirements. This important principle led the Court of Appeal in Rikha Begum to conclude that, where an applicant makes a second homeless application, the housing authority is bound to accept and consider that subsequent application if it had been properly made, i.e. if it is made other than on exactly the same facts, even if the authority considers there has been no material change in the applicant’s circumstances. That is now directly reflected in para.6.27 of the Code.”(The bold sections are highlighted by me).On immediacy Hickinbottom J ruled as follows: “41The low threshold, and the requirement for immediacy, also led Collins J to say, in Aweys (HC) at [8]:“In the vast majority of cases, the making of the application will mean that it is difficult if not impossible for the council not to believe that the applicant may be homeless or threatened with homelessness. Furthermore, no particular form of application is prescribed If it is apparent from what is said by an applicant (for there is no requirement that an application be in writing) or from anything in writing that he may be homeless or threatened with homelessness, the duty is triggered. Thus if a person complains to a council that the conditions in his existing accommodation are so bad that he wants a transfer or needs to find somewhere else, it is likely that the duty will arise because of section 175(3) even if there is no application based specifically on homelessness. Furthermore, there is no power to defer the inquiry which has to be carried out …”.Collins J was here considering the s.184 duty to make inquiries he went on toconsider the further duty to provide interim accommodation, to which I shall shortly return.” (Again the bold section was highlighted by me).In relation to the decision on “reason to believe” and whether clarification can be sought Hickinbottom J ruled thus: “42I agree that the duty to make statutory inquiries under s.184 is lightly triggered; and that is so whether the applicant says that he is (or is threatened to be) “roofless” or “homeless at home” to which the same statutory formula equally applies. However, in my respectful view, that does not mean that every housing complaint to an authority will necessarily require the authority to make s.184 inquiries. The authority is required to focus on whether it has reason to believe that the individual may be homeless or threatened with homelessness, because he is either roofless or homeless at home. If a person claims to be roofless, then the authority is entitled to ask him questions to clarify his housing status as such. Equally, the authority is entitled to question a person who claims that he is homeless at home, to clarify whether, in fact, there is reason to believe that the accommodation occupied by that person is such that it may not be reasonable for him to continue to occupy it. It is simply not the case that every complaint about the condition of a property of which the Council, and no doubt other housing authorities, receive very many gives rise to such a reason to believe, despite the lowness of the threshold. Where the complaint is about the condition of the property, the authority will often be able to proceed on the basis that the condition (even as described to them by the complainant) is repairable, and it will not be unreasonable to expect the complainant and his family to continue to live in the property until the remedial works have been carried out.” (The bold sections are highlighted by me).On the Housing Authority’s choice of method of inquiry Hickinbottom J ruled as follows: “43Furthermore, even where a duty to inquire arises, the manner in which theauthority complies with that duty (including the form of the inquiries and timespent over them) is essentially a matter for the authority themself, subject to guidance and the usual public law constraints including the bounds of reasonableness. What is reasonable will of course depend upon all of the circumstances, including the urgency and vulnerability of the applicant inherent in homelessness applications. R. v Camden London Borough Council Ex p. Gillan [1988] 21 H.L.R. 114 (Gillan)—a case relied upon by Mr Nabi, which I consider further below (see [61])—is an example of how cautious the courts are in finding that a scheme designed to carry out their Pt VII duties and adopted by a housing authority is outside the generous ambit granted to an authority in such matters.”On deferring the decision on reason to believe Hickinbottom J ruled thus: “44What the authority cannot do is defer consideration and a decision on the issue of whether it has reason to believe that the person may be homeless or threatened with homelessness, whilst it conducts further, non-statutory inquiries designed to (or with the consequence of) defeating the intent of the statutory provisions by avoiding their immediate duty to make statutory inquiries.”On what can be considered to enable the HA to decide Hickinbottom J ruled thus: “45Whether an authority has, in a particular case, unlawfully avoided their duty to inquire will depend upon the facts and circumstances of that case. However: (i) whether it has unlawfully avoided their statutory duty to inquire will be assessed against the background that this duty is designed to protect particularly vulnerable people;(ii) the “reason to believe” threshold is necessarily low, and, in most cases, the authority will be bound to consider and decide whether the threshold has been met on the basis of what the applicant says together with the past history of the applicant as known to the authority; and(iii) it is difficult to envisage circumstances in which a decision as to whether,on the basis of what the authority then knows, there is reason to believe theapplicant may be homeless could properly be avoided on the day theapplication is made (see [108] below).”On the S.188 interim accommodation duty Hickinbottom ruled thus:“46However, a housing authority’s interim duties do not end with the obligation to make inquiries: if the authority has reason to believe that the applicant may be homeless and may have a priority need, then, by virtue of s.188, it has a duty to secure interim accommodation pending a decision as to what full duty to house him (if any) that authority has under the later provisions, e.g. s.193. Once the obligation to secure interim accommodation has arisen under s.188, it remains on the authority until the authority has completed their inquiry under s.184 and notified the applicant of the resultant duty to house him, if any. The engagement of s.188 is, as the Code says (Introduction, para.15), “an important part of the safety net for people who have a priority need for accommodation and are unintentionally homeless”.”On suitability Hickinbottom J ruled as follows: “47As I have explained (see [28]–[29] above), by virtue of ss.206, 188 interimaccommodation must be “suitable”. Following the post Puhlhofer amendmentin 1986, there was uncertainty over the relationship between (i) the definition ofa “homeless” person which included a person who had a roof over his head butwho was in accommodation that it was not “reasonable for him to continue tooccupy”, and (ii) the duty on an authority to secure such a person “suitable”accommodation. This question arose: if an authority has reason to believe that aperson is or may be “homeless”, so it is or may be unreasonable for him to continue to occupy his current accommodation, does it automatically follow that, subject to him satisfying the other relevant conditions, the authority must immediately and without delay secure “suitable” housing for him elsewhere? The question is of considerable practical importance, not only in the context of a finding by an authority that an applicant is in fact homeless and in priority need (and so entitled to accommodation under the authority’s full s.193(2) duty), but also where, on an application but before their determination, the authority has reason to believe that the applicant may be homeless and in priority need and thus entitled to accommodation under s.188. In both cases, the entitlement is to “suitable” accommodation.”Hickinbottom J then considered the decision in Ali and whether it applied equally to the S.188 duty and ruled that it did: “53Although Aweys HL was a case concerning the full duty to accommodate under s.193, the analysis and conclusion equally apply to the interim duty to accommodate under s.188, although, as Baroness Hale herself acknowledged (see Aweys HL at [18]), what is regarded as suitable for discharging the interim duty may of course be different from what is regarded as suitable for discharging the more open-ended full duty.”111.I glean from these judgments that the S.188(1) duty is not engaged merely on request or assertion. In particular where a housing authority has a pre-existing file which counteracts the assertions made by the applicant, clarification may be necessary to avoid a refusal to engage the S.188(1) duty because the housing authority does not consider that the applicant’s assertions amount to “reason to believe …” but instead amount to a repeat of a previously rejected assertion in the existing file. 112.I also consider that in the light of the express references to S.188 in the judgment in Ali, Baroness Hale was making clear that a homeless at home decision which relates to the suitability of interim temporary accommodation before the S.193 decision would apply equally to interim accommodation under S.188(1). I consider that a “homeless at home” decision is properly a decision on suitability which a housing authority can make if the facts and circumstances justify it to fulfil the S.188(1) duty.113.On the facts of Edwards the housing authority had a policy always of offering interim accommodation to homeless applicants including those who were homeless at home. That was more generous than the law required. But each case is determined on its merits. So in relation to the assessment of suitability of the applicant’s current home as his interim accommodation Hickinbottom J said this at para. 104:“104… The statute provides that, if an authority has reason to believe that the applicant may be homeless and in priority need, then it must secure that “suitable” accommodation is available for his occupation. As I have explained (see [29] and [86(ii)] above), that involves an evaluative exercise by the authority, which might conclude that the accommodation occupied by a homeless at home applicant is “suitable” for him to occupy temporarily, for the whole (or for at least a part) of the period in which the homeless application is being considered. …”114.One issue in this claim is whether it was lawful under s206(1)(c) for the Defendants to decide that the Claimant was to remain in his then current accommodation having earlier offered TA which was refused by the Claimant. In R (Elkundi) v Birmingham [2022] EWCA Civ 601 Lewis LJ gave the lead judgment. The Claimant “E” had arthritis and difficulty with stairs. He had 5 children. He made a homelessness application. The housing authority decided under S.188(1) to offer temporary accommodation two months later in unsuitable accommodation (3 bedrooms with stairs). Later, having decided that E qualified for S.193 alternative permanent housing because they were homeless and had priority need, the Defendants asked E to stay where he was until they found somewhere suitable. The housing authority sought to assert that the duty could be deferred for a reasonable period whilst they found such accommodation and put the applicants on a waiting list. Steyn J had held that the S.193 duty was immediate and could not be deferred.115.On appeal Lewis LJ ruled as follows at para. 8 on the circumstances to be taken into account when considering whether it is reasonable for a person to continue to occupy their current accommodation after the S.193 decision: “8Regard may be had to the general circumstances prevailing in relation to housing in the authority’s area in determining whether it is reasonable for a person to continue to occupy accommodation: see section 177(2) of the 1996 Act. Section 177(1) provides that it is not reasonable to continue to occupy accommodation if it is probable that that would lead to a risk of domestic violence. The Secretary of State may prescribe other circumstances in which it is, or is not, reasonable to continue to occupy accommodation: see section 177(3) of the 1996 Act.” In relation to how a housing authority may discharge their duties Lewis LJ ruled;“79Nor do I consider that section 206(1)(c) of the 1996 Act indicates a different conclusion. That section is concerned with the discharge of all of the local housing authority’s functions under Part VII, not merely the duty under section 193(2). Section 206(1) provides that a local housing authority “may discharge” their functions in the following three ways, i.e. (a) by securing that suitable accommodation is provided by them, or (b) by securing that the individual obtains suitable accommodation from some other person, or (c) by giving him advice and assistance as will secure that suitable accommodation is available from some other person. I do not consider that the general, permissive words used in section 206(1)(c) are intended to indicate that the duty under section 193(2) is qualified in some way. Rather section 206 provides that an authority’s functions can only be discharged in one of the three ways set out (and not by any other method). It does not prescribe that all three methods must be available for use in respect of each duty, or each set of circumstances. If only two of the methods would discharge the section 193(2) duty in a particular case, and the third wouldnot, the local housing authority will have to use one of the first two methods.Thus, if the actions would not lead to the discharge of the duty, because the duty is one to secure that the accommodation “is available for occupation” and the actions taken under section 206(1)(c) would only secure that accommodation “will become available” in future, that would not be an appropriate method of discharging the section 193(2) duty.”116.It is clear from this ruling that Lewis LJ considered that when considering whether the Defendants in this case have discharged their S.188(1) responsibilities, once engaged, the only statutory methods of discharging those are set out in S.206. However with deference to Lewis LJ’s ruling it seems to me that fraud or misrepresentation could and should also permit the Defendants to revoke their acceptance of a S.188(1) duty under a plain interpretation of the word “may” and the common law. I will deal below with whether the applicant’s refusal or failure to answer reasonable questions and provide necessary information on his asserted medical conditions could also permit the Defendants to decide that they did not accept the duty in the first place or were no longer subject to the S.188(1) duty having already accepted it. 117.Lewis LJ went on to rule at para. 83 that the S.193(2) duty arose immediately when the housing authority decided that the applicant qualified and had a priority need and was homeless. It could not be deferred. Having considered the House of Lords’ decision in Ali, Lewis LJ at paras. 101-102 considered that the temporal interpretation of “reasonable to continue to occupy” affected the issue in Elkundi. Once the housing authority has decided it is unreasonable for the applicant to continue to occupy where he is currently, the duty to rehouse arose immediately. Finally in relation to waiver of the right to be rehoused and the choice to stay put, which one claimant had made in Elkundi, Lewis LJ held at para. 115 that this did not alleviate the housing authority of the duty to rehouse unless the purported waiver was after the applicant was fully and properly informed of his rights. He also cited the decision of Hickinbottom in Edwards on the right to be homeless at home if the applicant so chooses as he waits for the final decision:“116Section 188 of the 1996 Act imposes an interim duty where the local authority have reason to believe that a person may be homeless, eligible for assistance and have a priority need. The authority must then investigate whether or not any duty is owed and, in the interim, must secure that accommodation is available for the applicant’s occupation. An individual may prefer to stay in his current occupation, or stay with family and friends rather than have accommodation secured for him under the interim duty in section 188 and await the outcome of the housing authority’s inquiries. That may be a preferable course of action for the applicant for a number of reasons. Interim accommodation may be bed and breakfast accommodation whereas his current accommodation, although inadequate, may be preferable to that. Or an individual may have an assured tenancy of a property and be reluctant to give that up and move into bed and breakfast accommodation before he knows whether or not the local housing authority will be satisfied that duties are owed to him. In that context, the courts have recognised that a local housing authority will not be in breach of their section 188 duty if a person prefers to stay in his current accommodation rather than move to interim accommodation secured by the local housing authority. As Hickinbottom J put it in R (Edwards) v Birmingham City Council [2016] HLR 11, para 105:“However, so long as the applicant is aware that he is entitled tointerim accommodation until a decision is made on the homelessapplication - and so can make an informed initial decision, and knowsthat he can return to the Council at any time to request interimaccommodation - there is nothing objectionable in this.”118.So I understand that Lewis LJ accepted that the S.188(1) duty could be satisfied despite a “homeless at home” choice being potentially outside the three S.206 limbs if limb (c) was interpreted too narrowly. Applying the law to the facts119.In relation to S.188(1) the statute requires the Defendants at the gateway stage to consider whether to accept the application. In doing so the Defendants had a judgment call to make when considering the criteria under S.188(1). Those are: Do we have reason to believe:119.1that the Claimant is eligible; and 119.2that the Claimant has a priority need; in this case the asserted disabilities; and 119.3that the Claimant may be homeless by the S175(3) definition: namely in accommodation which it would not be reasonable for him to continue to occupy.Clarification before accepting the duty under S.188(1)120.To determine eligibility the local authority will need to know that the Claimant had a British passport. On the facts that was not sent to them until 26.8.2022 but I imply that the pre-existing file satisfied that requirement so this check would not take more than a short while. 121.As for the judgment call on whether they had reason to believe that the applicant may be in “accommodation which it would not be reasonable for him to continue to occupy” and whether he may have had a priority need, the application was based on the Claimant’s asserted medical disabilities and the needs arising as a result of those disabilities. This Court is required to decide whether the Defendants were entitled to clarify their own pre-existing medical, care and housing needs decisions against the application on an interim basis to make the judgment call. I consider that they were entitled to do so. This is because the Claimant was asking for two bedroom accommodation for himself and his carer against the background that over the course of their dealings with the Claimant the Defendants had decided that his disabilities required one bedroom accommodation and day care with equipment. The Defendants had received advice from a medical assessor. The Defendants had never accepted that he needed overnight care or a second bedroom or adapted accommodation.122.In the absence of any medical evidence from the Claimant, without clarification how could the Defendants overturn their previous decisions? How could the Defendants determine on an urgent interim basis whether there was reason to believe the Claimant “may” need a two bed flat without current updated medical evidence? Or that he could not reasonably stay where he was for one night longer (or one week longer or one month longer)? The nature of the accommodation which the Defendants were to offer in the interim had to be determined temporarily and the current adequacy and reasonableness of his Park West flat was to be considered quickly. But to do so without any updating medical evidence (GP notes; hospital discharge summaries; GP letters; consultant’s letters; anything showing a diagnosis) on the scope of his current disabilities and his needs provided by the Claimant would be illogical. 123.I accept that, as Hickinbottom J ruled, the Defendants are not entitled to frustrate or delay or fetter the urgent right of a vulnerable homeless person to suitable interim accommodation by non-statutory enquiries. The Defendants were not entitled to fetter or hold up the S.188(1) duty once it was engaged or to hold up the acceptance thereof where requests are in reality a frustration of the principle behind the duty to provide immediate assistance for the homeless. However in this case there was a pre-existing file for the Claimant. It contained decisions with which the Claimant did not agree. It contained a medical assessment with which the Claimant did not agree. An assessment which was partly based on his own GP notes which did not support his asserted medical conditions. In these circumstances in relation to deciding whether they had reason to believe what the nature of the priority need may be under S.188(1) arising from the disabilities, the Defendants had a judgment call to make decide what that had reason to believe “may” be needed in relation to the correct interim allocation of housing for the person who may be homeless but housed. The Defendants had to determine on a very provisional basis whether they had reason to believe what the Claimant’s priority need may have been in the light of the assertions which contradicted the decisions on their own long held file. The Defendants could have decided that the Claimant’s mere assertions did not give reason to believe such they would override their previous decisions on the disabilities. In my judgment this sort of decision on what provides reason to believe the Claimant may need or may suffer from cannot just be an uninformed guess nor a decision made purely on the demands or assertions of the applicant where the Defendants’ own historic file contains firm contrary evidence and decisions based on on medical advice.124.So in relation to this application, taking into account the following circumstances I consider that the Defendants were entitled to seek clarification of whether the Claimant would provide any current medical evidence in support of the Claimant’s asserted current disabilities and needs and to wait for the responses before they determined whether they should change their pre-existing decisions and accept that they had reason to believe the Claimant may have been homeless.Factors124.1The Claimant had chosen his private rental whilst he was a wheelchair user. 124.2The Claimant had lived at his private rental flat for 4 years as a wheelchair user.124.3The Claimant had not previously asserted that he was homeless.124.4The Claimant had been assisted, on his own assertions, by 24 hour care provided for the last four years at the flat.124.5The Claimant had an adapted toilet and other equipment in the flat (albeit he could not use the larger hoist).124.6The Claimant had historically been provided with State funding for 35 hours of day care per week (average 5 hours per day). 124.7The Defendants’ own medical assessor had assessed the Claimant in mid 2020 after an examination and after seeing the Claimant’s GP records. The assessor determined that the Claimant needed only a one bedroom flat and no night care and was able to walk and was likely going to progress to better mobility. 124.8The Claimant had chosen not to provide any medical letters or notes in support of the nature or extent of his asserted current multiple disabilities or of any asserted diagnosis or of any prognosis of any worsening of his conditions in support of his homelessness application despite having legal representation.124.9The Defendants’ long standing Adult Social Care approach on file had been that the Claimant did not need 24 hour care (night care). 124.10The Claimant failed for 14 days to return the forms which he was sent on 12.8.2022 and when he did so he failed to provide details of his NHS number, GP or any treating consultants.125.In my judgment S.188(1) is not a trump card route to overturn or bypass unchallenged decisions made by Social Services or housing authorities which have been taken in previous years after proper investigation and deliberation and in particular which are based on medical opinion. In my judgment there was no immediate duty imposed on the Defendants on 10th or 12th August 2022 after the unevidenced assertions by the Claimant of homelessness caused by disabilities more extensive and severe than the Defendants had accepted previously and the Claimant’s repeated demand for a larger property. 126.I consider that the Housing Act 1996 permits housing authorities to seek to understand if there is any reason to believe that there is any real potential substance in the demands and assertions made when such are in conflict with their historic files and previous decisions. Whilst the clarifications the Defendants may seek cannot be anything like as long or detailed as the full investigation (the statutory enquiries) I do not accept that a housing authority has no power to seek clarification where assertions founding a “homeless at home” application based on medical conditions contradict the authority’s previous evidence and decisions on those same conditions.127.It would have been different if the Claimant had produced a letter from a consultant orthopaedic surgeon or his GP saying, for instance, that his discectomy operation had gone poorly and his back condition was deteriorating and he had become wheelchair bound in the last few weeks because his spinal cord was compromised. 128.The rule against allowing non statutory enquiries, which I accept applies in its full force, does not in my judgment turn the Defendants into a post box or a tick box authority. It all depends on the circumstances. The Defendants are required to exercise judgment about the necessary “reason to believe”. Assertion may provide a potential reason but it must still be a judgment call. Gaining the reason to believe entails three steps in my judgment: (1) consideration of the assertions in the application and whether there is evidence provided to support them, (2) consideration of the contents of the housing authority’s historic file (and the Social Services file if necessary) and then if there is good or strong reason not to believe the decisions in the file in the Defendants’ possession: (3) clarification of the medical matters which can be clarified quickly with the applicant or third parties. All of this of course depends on the context of the application. If the applicant is street homeless and has priority need the timescale is probably shortened to hours or a day. If the applicant is, like the Claimant was, living in a private rental flat, and had been for four years, a flat which he himself chose, with 24 hour care support and has equipment to assist provided by the local authority and medical care provided by neurologists, pain management teams, physiotherapists and cardiologists, the timescale for clarification will probably be somewhat longer. If the applicant fails to provide any current medical evidence in support, refuses to clarify and blocks requests reasonably made for clarification, the timescale may extend or the engagement of the duty may reasonably be rejected.129.In the event the Claimant failed to provide any medical notes or evidence to support his application. He also failed or refused to complete the clear questions in the medical assessment form which he was sent on 12.8.2022. He returned the form 14 days after being asked for the information, so on 26.8.2022 and he refused to disclose his medical evidence and records with or on the forms.130.What then is the position with an applicant who fails to provide obviously necessary supporting evidence and fails to assist the housing authority by answering reasonable clarification requests? No case law authority was cited to me on this issue. 131.If the duty to accept is imposed on the housing authority immediately upon the application. If the duty is imposed just on mere assertion and there is no scope for clarification, that would be unworkable. It would permit a two legged man to assert he had one leg and seek priority housing and the authority would not be able to clarify the existence of the disability. If the authority were then sent a photo the next day of the applicant swimming in Hyde Park lake with two healthy legs what could they do? Disengage or terminate the duty which they had already been required to accept? 132.I do not consider that the housing authority has to provide interim housing despite considering that there is no real reason to believe that the application is genuine. For instance if it is based on a fraud. It seems to me that matters here have shades of grey depending on the facts. The decision to engage in my judgment depends on the facts asserted and the need for clarification in certain cases. 133.Thus I consider that after an application is made by a homeless person who has a roof, the housing authority are entitled to clarify the vital points asserted when they conflict with the authority’s previous decisions made after proper previous investigations. The clarification should be sought in a quick and reasonable way and in my judgment the applicant is under a duty to assist them by answering quickly. Then after a short time a decision has to be taken by the authority on whether the S.188(1) duty is engaged. Homeless at home after acceptance of the duty134.The Claimant submits that the Defendants’ decision that he was suitably housed as “homeless at home” pending the decision and final outcome of the application could only be made once the Defendants had accepted the S.188(1) application and notified the Claimant of that and had offered interim temporary accommodation which was suitable and could only be made by the Claimant (not the Defendants). I do not consider that submission to reflect accurately the ruling in Ali. In my judgment in law a housing authority is entitled within its discretion to reach a decision that an applicant is suitably accommodated in his current accommodation pending investigation and resolution of the main issues despite being homeless under the statutory definition. It is not a matter of informed consent but rather informed decision making. However I consider that the applicant should be told of any such decision so he may challenge it.Suitability of the Park West Flat135.On the facts of this case in my judgment the Claimant could not be determined as safe in his flat by any reasonable housing authority due to the fire safety risk. This risk was or should have been apparent to the Defendants’ because they had accepted that the Claimant did have a level disability requiring equipment and wheelchair use and day care on their own files. No one appears to have doubted the accepted level of disability would have prevented him descending 7 flights of stairs fast, if a fire arose and the lift was not to be used. This Court was provided with no evidence to show that the Defendants had considered whether the Claimant was suitably housed at home at his 7th floor flat taking into account the fire risk. I find that the Defendants, on the balance of probabilities, failed to take into account this crucial factor. Defence counsel at the hearing did not make submissions in response to the Claimant’s fire risk point. It is not mentioned in the Defendants’ response letters. Nor do the Grounds of Response deal with this issue. So in my judgment the Defendants’ case that they were fulfilling their S.188(1) duty after 26 September 2022 by deciding the Claimant was suitably housed at home was irrational. They failed to take into account a really important matter: fire safety. 136.However that irrationality had no effect in law or in fact because the Claimant had suspended or ended the Defendants’ duty in relation to his application by choosing to stay put on 26.9.2022 instead of accepting the Defendants’ offer of suitable alternative interim accommodation. In circumstances where the Claimant was refusing to move into suitable interim accommodation it cannot be said that the Defendants were in breach of their duty to provide accommodation thereafter whatever their subsequent decision was. This was so unless the Claimant later changed his mind and told the Defendants that he had changed his mind on the need for interim accommodation and that he would accept a one bed ground floor property or because there was a change of circumstances. I have been provided with no evidence that he changed his mind or told the Defendants that he had done so or that there was any change in circumstances. Grounds for challengeStatement of facts137.The Claimant’s Statement of Facts in the Amended Grounds makes no reference whatsoever to the offer made to the Claimant on 26.9.2022 of interim temporary accommodation and the Claimant’s rejection thereof. Notification138.