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

The Judgment is well-structured and clearly expressed. Having set out the factual background, the Judge identified that there were before him three grounds of appeal. Ground 3 concerned the application of the PSED contained in the Equality Act 2010 and is not pursued in the present appeal.

Grounds 1 and 2(a) were founded on the contention that Barnet had failed to prepare and keep under review its assessment of the appellant’s housing needs and her PHP. As summarised by the Judge, the appellant’s case was simply that by section 195(3) of the Act Barnet was bound to have regard to the housing needs assessment in the discharge of its duty; and, in the absence of any assessment, its decision on suitability and its application of the criteria in Article 2 of the Homelessness (Suitability of Accommodation) (England) Order 2012 was unlawful.

The Judge addressed Grounds 1 and 2(a) together at [34]-[43] of the Judgment. In the course of doing so he conducted a short but appropriate review of the relevant statutory provisions and the authorities that were before him, including UO v Redbridge LBC [2023] HLR 39 H), XY v Haringey LBC [2019] EWHC 2276 (Admin), and R(ZK) v Havering LBC [2022] HLR 47 (three cases of Judicial Review); and Abed v City of Westminster [2011] EWCA Civ 1406. Having set out the parties’ submissions, he said, at [52]-[53]:

“52.

I find as follows. The Respondent did make an assessment of the Appellant’s housing needs. It used the assessment to allocate the Appellant to the appropriate housing band under Part VI of the Act, and, I draw the reasonable inference, to make an offer of suitable accommodation under Part VII of the Act. The assessment was communicated to the Appellant in writing in the banding letter, albeit the letter was written for the purposes of Part VI, not Part VII, of the Act. It was not contained in the PHP.

53.

Insofar as the assessment relates to suitability, it may fairly be criticised as being insufficiently reasoned. In particular, the assessment did not consider how the distance of the Property from the Appellant’s support network might impact upon its suitability. However, this deficiency was remedied in the review decision, which gave full consideration to this point. I shall therefore proceed, without presently deciding, on the assumption that: (i) the Respondent did not carry out a housing needs assessment which as regards suitability complied with the requirements of section 189A; and (ii) apart from the reviewing officer’s failure to identify and give appropriate weight to the section 189A point, the review decision as regards suitability was in all other respects satisfactory.”

It is clear that in reaching this staging post in the Judgment, the Judge accepted the following propositions, which I would respectfully endorse:

As set out above, the Judge accepted at [53] of the Judgment that the identified deficiency in reasoning in the original assessment was remedied in the Review decision, which gave full consideration to the point. At [55]-[61] of the Judgment, the Judge then considered the issue of legislative intent or, in other words, what should be the effect of the failure provide sufficient reasons in the original assessment, in circumstances where the original deficiency had subsequently been remedied by the Review decision that is not as such subject to any substantive criticism.

The Judge cited a passage from Bennion, Bailey and Norbury on Statutory Interpretation on the failure to comply with statutory requirements, which in turn cited a passage from the judgment of Etherton C in Natt v Osman [2014] EWCA Civ 1520 at [25]:

“The modern approach is to determine the consequence of non-compliance as an ordinary issue of statutory interpretation, applying all the usual principles of statutory interpretation. It invariably involves, therefore, among other things according to the context, an assessment of the purpose and importance of the requirement in the context of the statutory scheme as a whole.”

Adopting these principles, the Judge gave his reasons concisely:

“56.

Having regard to the observation of Lloyd LJ in Abed at [26], I am satisfied that Parliament did not intend that an authority’s failure to carry out any or any adequate housing needs assessment under section 189A should invalidate a finding of suitability under a section 202 review. Suitability is a factual assessment which the reviewing officer must consider afresh. Their decision on the point supersedes any earlier decision or failure to decide by the authority.

57.

On appeal, the court need not look back beyond the reviewing officer’s decision. However, an adequate housing needs assessment will be likely to assist a reviewing officer when determining suitability. An inadequate housing needs assessment, or no housing needs assessment at all, will be likely to make the reviewing officer’s task in determining suitability more difficult.

58.

The present case is not one where the Respondent failed to carry out any assessment of the Appellant’s housing needs or to communicate that assessment to her. If the Appellant wished to argue that the assessment process undertaken and communicated by the Respondent failed to comply with the requirements of section 189A, and that for that reason the Property could not properly be assessed as suitable, then she should have done so during the review process. I do not consider the point as being so obvious that the reviewing officer was bound to consider it in any event.

59.

There is another element to the Appellant’s argument under grounds 1 and 2(a). Her PHP, which was based on an assessment carried out on 21 September 2022, states that the PHP is to be reviewed by an officer and with the customer on 21 October 2022 at 9.15am. There is no evidence that any such review was ever carried out. The Appellant submits that the Respondent was therefore in breach of its section 189A(9) duty to keep the PHP under review.

60.

I am satisfied there is nothing in this point. Section 189A does not say how often the PHP should be reviewed. In the present case, the interval between the PHP and the review decision was less than a year and the interval between the PHP and the offer of the Property less than six months. There was no material change in the Appellant’s circumstances during that period.

61.

The Appellant submits that if the PHP had been reviewed before the property was offered, the housing needs of the Appellant could have been identified and rectified. However, subject to the ground 2(b) point about location, there is no reason to suppose that a further PHP would have led the Respondent to consider that the Property was not suitable. In any event, the objections to the housing needs assessment point taken in grounds 1 and 2(a) apply also mutatis mutandis to the PHP point. I.e., the Court is concerned with whether, in light of the Appellant’s housing needs, the reviewing officer could properly have found that the Property was in fact suitable. If the Appellant wished to take the PHP point, she should have done so before the reviewing officer.

62.

For these reasons, grounds 1 and 2(a) are both dismissed.”

In Abed v City of Westminster [2011] EWCA Civ 1406 to which the Judge referred in [56] of the Judgment, Lloyd LJ identified the issue before the Court at [1]:

“… before us there is only one ground of appeal which contends that Westminster followed an unlawful process in offering accommodation to the appellant at the first stage without having first made an assessment of the suitability of the accommodation for her needs.”

I set out the passage at [26] of Abed to which the Judge referred at [51] below.

Having disposed of Grounds 1 and 2(a), the Judge addressed the appellant’s contention under Ground 2(b) that Barnet had failed properly to consider the effects on the appellant and her son of living so far from their support network and the effect of them being unable to access that support. It was the appellant’s case that no reasonable authority would conclude that the Property was suitable for the appellant and her son, given the detriment that was being caused when living in it. The reviewing officer had considered this question in detail at [56]-[58] of the Review decision and had concluded that the property was reasonably located and the offer of the Property suitable to the appellant’s needs. The Judge concluded that the reviewing officer was entitled to reach that conclusion on the evidence before them. That conclusion is not challenged in the present appeal. The availability of other accommodation as at the date of the Review decision was not a point that the Reviewing officer was requested to consider.