CA-2025-000320 - [2025] EWCA Civ 1336

The statutory framework

Part VII of the 1996 Act, comprising sections 175-216, is concerned with homelessness.

Sections 183 and 184 of the 1996 Act have the overall heading “Application for assistance in case of homelessness or threatened homelessness” and section 184 is itself headed “Inquiry into cases of homelessness or threatened homelessness”. So far as relevant, section 184 provides:

If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves—

whether he is eligible for assistance, and

if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.

They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.

On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.

…

If the authority have notified or intend to notify another local housing authority in England under section 198(A1) (referral of cases where section 189B applies), they shall at the same time notify the applicant of that decision and inform him of the reasons for it.

A notice under subsection (3) or (4) shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202).”

Section 188 of the 1996 Act, headed “Interim duty to accommodate in case of apparent priority need”, requires a local housing authority to secure that accommodation is available for the occupation of an applicant if it has reason to believe that the person may be homeless, be eligible for assistance and have a priority need.

Section 193 of the 1996 Act, which is to be found in a group of sections with the heading “Duties to persons found to be homeless or threatened with homelessness”, imposes the main housing duty, requiring the local housing authority “to secure that accommodation is available for occupation by the applicant”: see section 193(2). This applies where the local housing authority concludes that the person is homeless, is eligible for assistance, did not become homeless intentionally and has a priority need.

Section 193(3) of the 1996 Act provides for a local housing authority to remain subject to the main housing duty until it ceases by virtue of any of the following provisions of the section. Those of relevance in the present context are subsections (5), (6), (7), (7AA) and (7AB). They provide:

The local housing authority shall cease to be subject to the duty under this section if—

the applicant, having been informed by the authority of the possible consequence of refusal or acceptance and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for the applicant,

that offer of accommodation is not an offer of accommodation under Part 6 or a private rented sector offer, and

the authority notify the applicant that they regard themselves as ceasing to be subject to the duty under this section.

The local housing authority shall cease to be subject to the duty under this section if the applicant—

ceases to be eligible for assistance,

becomes homeless intentionally from the accommodation made available for his occupation,

accepts an offer of accommodation under Part VI (allocation of housing), or

(cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord,

otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation.

The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal or acceptance and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.

…

(7AA) The authority shall also cease to be subject to the duty under this section if the applicant, having been informed in writing of the matters mentioned in subsection (7AB)—

accepts a private rented sector offer, or

refuses such an offer.

(7AB) The matters are—

the possible consequence of refusal or acceptance of the offer, and

that the applicant has the right to request a review of the suitability of the accommodation, and

in a case which is not a restricted case, the effect under section 195A of a further application to a local housing authority within two years of acceptance of the offer.”

Section 193 of the 1996 Act has been the subject of significant amendments since first enacted. In their original form, subsections (5) and (7) provided as follows:

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.

…

The local housing authority shall also cease to be subject to the duty under this section if—

the applicant, having been informed of the possible consequence of refusal, refuses an offer of accommodation under Part VI, and

the authority are satisfied that the accommodation was suitable for him and that it was reasonable for him to accept it and notify him accordingly within 21 days of the refusal.”

The Homelessness Act 2002 inserted the words “and of his right to request a review of the suitability of the accommodation” into subsection (5) and replaced the existing subsection (7) with a provision in its current terms except that it did not include “or acceptance”. Those words were added into subsection (7) by the Localism Act 2011, which also provided for the present form of subsection (5) to be substituted. In the meantime, subsections (7AA)-(7AD) had been inserted by the Housing and Regeneration Act 2008, and those subsections were modified by the 2011 Act.

The following observations can be made:

Subsections (5), (7) and (7AB) all now require an applicant to have been informed of the right to request a review of suitability;

In their original form, subsection (5) required the local housing authority to “notify [the applicant] that they regard themselves as having discharged their duty under this section” and subsection (7) required the authority to “notify [the applicant] … within 21 days of the refusal” that it was “satisfied that the accommodation was suitable for him and that it was reasonable for him to accept it”. Nowadays, subsection (5) speaks of the authority “notify[ing] the applicant that they regard themselves as ceasing to be subject to the duty under this section”, while the notification obligation formerly in subsection (7)(b) has been dispensed with. Nor do subsections (7AA)-(7AD) say that the authority must notify the applicant of anything after an offer has been accepted or refused.

The explanatory notes in respect of section 7(3) of the Homelessness Act 2002, which was the provision which effected the substitution of a subsection (7) in substantially the present form (and, hence, the deletion of the notification requirement in what had been subsection (7)(b)), stated:

“Section 7(3) replaces section 193(7) of the 1996 Act and sets out further circumstances under which the main duty to secure accommodation ceases. The new provision clarifies the ending of the main homelessness duty where the applicant refuses an offer of suitable accommodation allocated under Part 6.  The housing authority has to notify the applicant in writing that the offer is a final offer and that the duty will end if it is refused.   It must also notify the applicant of his right to request a review of the suitability of the accommodation.”

Sections 202-204A of the 1996 Act make provision as regards reviews and appeals. Section 202 confers on an applicant a right to request a review of various decisions of a local housing authority. Such decisions include, by section 202(1)(a), (b) and (f) respectively, “any decision of a local housing authority as to his eligibility for assistance”, “any decision of a local housing authority as to what duty (if any) is owed to him under sections 189B to 193C and 195 ... (duties to persons found to be homeless or threatened with homelessness)” and “any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e) or as to the suitability of accommodation offered to him as mentioned in section 193(7)”. Section 202(2) states that there is “no right to request a review of the decision reached on an earlier review”. Section 202(3) provides:

“A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority’s decision or such longer period as the authority may in writing allow.”

By section 204 of the 1996 Act, a person dissatisfied with a review decision may appeal to the County Court on “any point of law arising from the decision or, as the case may be, the original decision”. “Although the county court’s jurisdiction is appellate, it is in substance the same as that of the High Court in judicial review” (Runa Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 AC 430, at paragraph 7, per Lord Bingham). The grounds of challenge can include “procedural error, the extent of legal powers (vires), irrationality and inadequacy of reasons”: see James v Hertsmere BC [2020] EWCA Civ 489, [2020] 1 WLR 3606, at paragraph 31, per Peter Jackson LJ, and also Abdikadir v Ealing LBC [2022] EWCA Civ 979, [2022] PTSR 1455, at paragraph 8, per Lewison LJ.

The procedures for review and appeal for which sections 202 and 204 of the 1996 Act provide were an innovation. In this connection, De Smith’s Judicial Review, 9th ed., explains in paragraph 17-036:

“By the mid-1990s, a third of all judicial review applications to the High Court concerned homelessness decisions; often the dispute was essentially one of fact and primary judgment (was the person intentionally homeless? was the accommodation offered suitable?) rather than of law. … In Access to Justice, Lord Woolf recommended that the supervisory jurisdiction over the lawfulness of homelessness decision-making should be transferred to the county courts and this was swiftly implemented by Pt 7 of the Housing Act 1996. … The existence of a review procedure in the county courts has not taken away the Administrative Court’s jurisdiction to exercise its judicial review jurisdiction in the context of decisions relating to homelessness, but that jurisdiction will now be used only in exceptional circumstances.”