CA-2024-002169 - [2025] EWCA Civ 1174

The relevant provisions of Part VII of the Act are well known and do not need to be set out extensively again here. We are primarily concerned with sections 189A, 195 and 202. In briefest outline, the duty with which we are directly concerned is the prevention duty that is owed when a local housing authority is satisfied that an applicant is threatened with homelessness and eligible for assistance: section 195(1). The scope of the authority’s duty in cases of threatened homelessness such as the present is stated in section 195(2): “the authority must take reasonable steps to help the applicant to secure that accommodation does not cease to be available for the applicant’s occupation.” Other sections may be seen as ancillary to that duty, in the sense that they make provision affecting how the authority should go about discharging its prevention duty. For present purposes, the relevant provision is section 195(3), which lays down that “in deciding what steps they are to take [i.e. what steps must be taken because they are reasonable within the meaning of section 195(2)] the authority must have regard to their assessment of the applicant’s case under section 189A.”

The effect of section 189A(1) in a threatened homelessness case such as the present is that “the authority must make an assessment of the applicant’s case.” Section 189A(2) provides that the assessment must include an assessment of three specific features, though the authority is not precluded from considering others when assessing the applicant’s case. Put briefly, the three specific features are (a) the circumstances that caused the applicant to become threatened with homelessness, (b) the housing needs of the applicant, including what accommodation would be suitable for the applicant and other relevant persons, and (c) what support would be necessary for the applicant and any other relevant persons to be able to have and retain suitable accommodation.

The prevention duty may be discharged by attempting to secure the continuation of current accommodation; but it may also be discharged by the authority securing that suitable accommodation provided by the authority is available, or in other ways as outlined in section 206(1) of the Act.

Section 202 provides for an applicant to request a review of some but not all decisions that may be made by an authority in a homelessness or threatened homelessness case. For present purposes, the potentially relevant decisions of which an applicant threatened with homelessness may request a review pursuant to section 202(1) are (i) any decision of the authority as to what duty (if any) is owed to the applicant under section 195: section 202(1)(b); (ii) any decision of an authority as to the steps they are to take under section 195(2): section 202(1)(bc)(i); and (iii) any decision of a local authority as to the suitability of accommodation offered to him in discharge of its duty under section 195: section 202(1)(f). There is no provision under section 202 for an applicant to request a review of the authority’s assessment of their case or the PHP produced by the authority. Section 202 does not provide a blanket right to request a general review where an applicant is dissatisfied with the approach or outcome being adopted or proposed by the local authority. The right provided by section 202 to request a review of a decision is specific to the types of decision identified in section 202(1): see Ofori-Addo v Haringey LBC [2025] EWCA Civ 277 at [42].

The appellant’s case on Ground 1 is fundamentally flawed because it is based on the assertion that Barnet did not carry out an assessment of her housing needs. That assertion is unsustainable. Having heard all of the evidence, the Judge found that Barnet did make an assessment of the appellant’s housing needs. That finding was not merely one that the Judge was entitled to make – it was plainly right. As summarised above, having gathered preliminary evidence from the appellant and her son, Barnet conducted a telephone interview that addressed each of the three features required by section 189(2) as well as other matters that were relevant to an assessment of the appellant’s housing needs. The record of that interview was then sent to the appellant and her son for their agreement, which was forthcoming when they signed the post-interview declaration forms. The PHP was subsequently sent to the applicant: see [5]-[7] above.

It is plain that Barnet’s assessment of the appellant’s case did not end there. Specifically in relation to housing needs, Barnet consulted its Medical Team who provided the recommendations set out at [10]] above. Those recommendations were incorporated in the statement of criteria for suitability in Barnet’s banding letter on 5 December 2022: see [11] above. When asked to do so, Barnet considered the appellant’s objections to her banding allocation: see [12] above.

The continuing process of assessment and having regard to that assessment was then illustrated by the steps Barnet took to ensure that the first property offered to the appellant was suitable, leading to the acceptance that it was not and withdrawal of that offer: see [13]. At no stage did the appellant suggest that the assessment disclosed by this course of dealing was deficient in relation to its assessment of her housing needs. Her objection to the proposed banding was not based on assessment of her housing needs; rather it was based on the assertion that her current accommodation (in respect of which she was threatened with homelessness) was uninhabitable. Her objection to the Avondale Avenue property was not based on a contention that her housing needs were wrongly identified; rather it was that the bathroom was on the first floor and she had a fear of chair-lifts. Barnet accepted that this rendered it unsuitable for her: see [13] above.

This process, briefly summarised above, to my mind shows Barnet adopting a positive and collaborative approach towards the appellant, taking account of her and her son’s particular needs having regard to their assessment of the case, and making all reasonable efforts over time to engage their cooperation. While I accept that the assessment of the appellant’s case is to be found in more than one document, that does not matter. What matters is the substance of the assessment that was carried out. As to that, the Judge’s rejection of the submission that Barnet made no section 189A assessment at all was and is unimpeachable.

The Judge found in the appellant’s favour that Barnet’s assessment was deficient as regards suitability because its reasoning was insufficient about how the distance of the Property from the appellant’s support network might impact upon its suitability. That deficiency was, as the Judge correctly found, remedied by the Review decision. It is that decision that is the subject of these proceedings. Ground 1 therefore requires reformulation. The issue for us is whether, where a request for review of suitability is made and the resulting review decision adequately addresses and thereby remedies the substantive deficiency in the underlying decision, the review decision can be challenged by bringing an appeal to the County Court on a point of law pursuant to section 204 of the Act on the basis of the original deficiency in the assessment of suitability. I am in no doubt that it cannot.

I would readily accept that there may be circumstances where a failure to carry out an appropriate assessment of an applicant’s case as required by section 189A may be challenged by way of judicial review proceedings. There are numerous examples at first instance of such challenges being brought and the results of such cases are evidently fact-dependent applying normal public law principles. Where an underlying decision (e.g. the assessment of the applicant’s case) is quashed, subsequent decisions that are dependent upon the underlying decision may have to be set aside. However, that is not the present case. No challenge to Barnet’s assessment has been brought by way of judicial review proceedings. As I have mentioned, section 202(1) identifies specifically the decisions that are susceptible to a request for a review. The present proceedings arise from a suitability challenge pursuant to section 202(1)(f) and come to this court via the County Court pursuant to section 204 of the Act.

The absence of judicial review proceedings cannot be glossed over. On established public law principles, administrative acts are valid unless and until quashed by a Court: see Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295, at 366 (Lord Diplock), cited in R (Noble Organisation) v Thanet DC [2005] EWCA Civ 782; [2006] Env LR 8, at para 42 (per Auld LJ). In theory, at least, the requirement under section 195(3) for Barnet to have regard to their assessment of the applicant’s case under section 189A is a mandatory relevant consideration, failure to comply with which could found a vires challenge to the validity of the assessment. But the time for bringing such a challenge is strictly limited, no judicial review challenge was brought within time (or at all) and, in any event, it is plain that such a challenge should have failed on its facts, because it is evident on the Judge’s findings that Barnet did have regard to their assessment as required by the Act. In this case the assessment was not challenged at the time and, having not been quashed, it remains valid.

There was no challenge to the Judge’s approach in principle to the consequences of non-compliance with an imperative statutory requirement as summarised by Etherton C in Natt v Osman – see [26] above. On established principles, based on R v Soneji [2005] UKHL 49, [2006] 1 AC 340, in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27. [2024] 3 WLR 601 the Supreme Court stated:

“[58] … the correct approach to a failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was a purpose of the legislature that an act done in breach of that provision should be invalid.

…

[61] The point of adoption of the revised analytical framework in Soneji was to move away from a rigid category-based approach to evaluating the consequences of a failure to comply with a statutory procedural requirement and to focus instead on (a) the purpose served by the requirement as assessed in light of a detailed analysis of the particular statute and (b) the specific facts of the case, having regard to whether any (and what) prejudice might be caused or whether any injustice might arise if the validity of the statutory process is affirmed notwithstanding the breach of the procedural requirement."

…

[68] In our view the correct approach in a case where there is no express statement of the consequences of non-compliance with a statutory requirement is first to look carefully at the whole of the structure within which the requirement arises and ask what consequence of non-compliance best fits the structure as a whole."

In R v Layden [2025] UKSC 12, [2025] 2 WLR 740the Supreme Court also encapsulated the same principle in slightly different terms at [76]-[77]:

"[76] In order to consider whether Parliament can fairly have intended total invalidity to follow it is necessary to identify the alternative to total invalidity.

[77] In most cases involving the Soneji principle the alternative will be an evaluation of the consequences of the procedural failure, whether any prejudice might be caused and whether any injustice might arise if the validity of the statutory process is affirmed notwithstanding the breach of the procedural requirement (see, for example, A1 Properties … at para 61)."

We do not start with a blank sheet of paper. Two previous decisions of the Court have considered this question in circumstances that are closely analogous to but not quite congruent with the facts of the present case.

In Abed, the duty owed to the applicant was the duty owed pursuant to section 193 of the Act to persons with priority need who are not homeless intentionally. Subject to irrelevant qualifications, the duty is to secure that accommodation is available for occupation by the applicant: section 193(2). The issue for the Court was summarised at [15]:

“The single issue is that Westminster followed an unlawful process in making its offer to the appellant because it did not assess the suitability of the accommodation for her needs before making the offer. Thus the entire focus is on the position on, and before, the date of the offer on 11 February 2010. No criticism is addressed to the review process or to the review decision as such.”

Addressing the origins of the review procedure under Part VII of the Act, Lloyd LJ (with whom Kitchen and Ward LJJ agreed) said at [20]:

“Before this procedure was introduced local authority decisions in this area could only be challenged by way of judicial review. This led to an unmanageable burden of such applications which, if successful, resulted in the local authority having to go through the same decision process again but by a proper method. Instead, in the case of most decisions under this part of the Act, the Act now provides for first of all a right to an administrative review by the authority to be conducted by a different person by or on behalf of the authority; and secondly a right of appeal on a point of law said to be erroneous in the review decision.”

At [26] Lloyd LJ said (in the passage referred to by the Judge):

“On behalf of the appellant Mr Gannon does not challenge any aspect of the review process in the one ground on which the appeal is brought. In my judgment that is fatal to the appeal. The observations in Ojuri have no relevance to a case where a statutory review process is available. In such a case the Act has provided for the applicant to challenge the decision and to have it fully reconsidered, with the opportunity to ensure that the full facts are taken into account. That seems to me to exclude as illegitimate a challenge on the grounds such as the original process was incorrect or even unlawful, because a point of that kind is superseded by the question as to whether the review process was carried out properly and reached a legally correct solution.”

And at [28]-[29] he said:

“28.

In my judgment these show that the review process, which is as Lord Slynn said an administrative process, is a continuation or a replacement for the initial decision-making process. It is therefore in a sense analogous to what would have been the result if under the old procedure the judicial review application had been brought and the administrative court had quashed the original decision and required the local authority to come to a fresh decision. If such a process had then been taken the inadequacy or even unlawfulness of the original decision would have been nothing to the point. Likewise under the present regime, for which the review is a matter of right for the disappointed applicant, it seems to me that while of course any point may be taken in the course of the review as to what was or was not said at the stage of the original offer, what really matters is for the issues of substance to be addressed in the course of the review, and to be properly addressed.

29.

Accordingly even if the local authority failed in its duty to make proper inquiries on the issues relevant to suitability of the accommodation before making an offer, in my judgment the remedy for a disappointed applicant is to exercise the right of review. The applicant thereby has a second chance to have the matter properly considered with the fullest opportunity for representations to be made and a fresh duty on the local authority to make proper inquiries. Only if the result of that process is flawed so as to be wrong in law is there any further recourse by way of appeal [pursuant to] section 204.”

One point of difference, heavily relied upon by the appellant in the present case, is that there is no provision in relation to the duty owed under section 193 that is equivalent to section 195(3). The appellant points out that provisions equivalent to section 195(3), requiring the authority to have regard to their assessment of the applicant’s case under section 189A are also to be found at sections 189B(3) and 190(4). This is factually correct and enables the appellant to argue that a failure to comply with section 195(3) has some special status that necessarily invalidates all that comes after the initial failure, whatever the quality and outcome of a requested review. However, the observations of the Court of Appeal in Abed are statements of general principle going to the fact of Parliament’s provision of an additional remedy that is different and discrete from what is available in judicial review proceedings.

Norton v LB Haringey [2025] EWCA Civ 746 was decided on 17 June 2025, shortly before the hearing of the present appeal. Once again, it was the applicant’s case that the preparation of a lawful section 189A assessment was a condition precedent to a lawful determination of the suitability of offered accommodation. As in Abed, the duty owed by the local authority was the duty under section 193(2) of the Act to a person with priority need who was not homeless intentionally. Once again, the appellant’s case failed.

Lewison LJ (with whom Warby and Jeremy Baker LJJ agreed) gave the leading judgment. The central passage of his analysis is at [47] and [49]-[52] and demands close attention:

“47.

The starting point is the overall structure of this Part of the 1996 Act. As is shown by sections 189B, 190, and 195, when Parliament wished to cross-refer to a section 189A assessment it did so. There is no such cross-reference in section 210 or the Regulations made under it. Section 193B (6) suggests that an authority is not confined to making decisions based on the section 189A assessment. As HHJ Saggerson rightly said, section 210 does not impose any duty on a reviewing officer (or for that matter on the authority) to consider a section 189A assessment, although he is (or they are) of course free to do so if it is relevant. We have also seen that under section 188 a local housing authority may have an interim duty to secure that accommodation is available for an applicant who may be homeless, eligible for assistance and in priority need. That duty arises before a section 189A assessment is made. Nevertheless, the accommodation must be suitable, in order to comply with section 206. As Mr Bowen KC pointed out in YR at [99], the test for suitability is identical whether section 188 is considered in isolation or in the light of a section 189A assessment. Since a decision under section 188 may be made before the making of a section 189A assessment, and the test of suitability is the same, it must follow that a lawful decision under section 188 may be made in the absence of such an assessment. Mr Johnson's argument entails the conclusion that the lawfulness of a decision on suitability fundamentally changes as the sequential duties come into existence. But the Act, in my judgment, gives no clue to such a radical consequence.

48.

…

49.

Applying the approach in A1 Properties, [the applicant] has lost nothing of value. He was entitled to, and received, a decision on suitability which contains no legal flaw.

50.

Applying the approach in Layden, I should evaluate the consequences if the failure to comply with the imperative requirement invalidates what follows. In my judgment the consequences of holding that compliance with the duty under section 189A is a condition precedent are stark; and unlikely to reflect Parliament's intention. Mr Johnson argued that if no section 189A assessment was prepared, it would not be possible to prepare a PHP and consequently no duty under Part 7 (apart, perhaps, for an interim duty under section 188) could arise. Thus, if Mr Johnson's argument is correct, in the absence of any assessment under section 189A:

i)

The authority would not be entitled to take any steps under section 189B to help an applicant to secure accommodation;

ii)

The authority would not be entitled to decide what advice or assistance is to be provided to an applicant under section 190;

iii)

The authority would not be able to discharge the main housing duty under section 193 by making an offer of suitable accommodation; and

iv)

The authority would not be entitled to take steps under section 195 to prevent an applicant from becoming homeless.

51.

In addition, as Mr Johnson recognised, the acceptance of his argument would mean that if a local housing authority, in the absence of a section 189A assessment, made an impeccable assessment of suitability, and then offered that accommodation to the applicant the offer would be unlawful. I find it impossible to conclude that Parliament can have intended that an otherwise lawful offer, which would have the direct effect of immediate relief of homelessness, would be invalid and unlawful for lack of a section 189A assessment.

52.

In short, an authority would be partially paralysed; and prevented from carrying out what would otherwise be some of its duties to help the homeless or those threatened with homelessness. Parliament is unlikely to have contemplated such paralysis as being acceptable.”

In my judgment, even if these passages from Abed and Norton are not formally binding on us, they provide very strong persuasive arguments by close analogy to which the appellant in the present case has no answer. Parliament has provided an additional remedy (over and above any remedy that may have been available in judicial review proceedings) which is designed to remedy specified deficiencies in decisions made by a local authority. It would, in my judgment be bizarre to the point of incoherence to impute to Parliament an intention that even an entirely faultless review decision could then be set aside because of the earlier deficiency which it has remedied.

Subject to one minor gloss, for these reasons I reach the same conclusion in the present case as was reached in Abed and Norton. The one minor gloss is that, at the commencement of [31] of Norton, Lewison LJ said: “I do not doubt that an assessment of suitability based on an unlawful or otherwise legally flawed assessment under section 189A is itself legally flawed.” Given the overall context provided by the rest of his judgment, I understand Lewison LJ to be referring to the general proposition that I have outlined in [45] above, namely that when a decision is quashed subsequent decisions that are dependent upon the underlying decision may also fall to be set aside. That proposition I regard as uncontroversial. I do not think that Lewison LJ was lending any support to the proposition for which the appellant contends in this appeal. If he was, I would respectfully demur, for the reasons I have attempted to give in this judgment.

I would dismiss the appeal on Ground 1.