Case No. EWHC-185-(Admin)

; 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.