London borough still owed claimant duty to secure accommodation as it had not taken decision to end it, judge rules

The London Borough of Waltham Forest cannot have ended its duty to accommodate a resident because it never took a valid decision to do so, the High Court has found in a judicial review.

Dexter Dias KC, sitting as a deputy High Court judge, also held that the case turned on unusual factors which meant his decision would not open “floodgates” to cases at other councils, as Waltham Forest had warned.

Waltham Forest had accepted a duty to secure accommodation for the claimant under the Housing Act 1996.

Mr Dias said: “The prime issue between the parties is whether the [council] continues to owe [the claimant] a duty to secure her accommodation under s.193 of the Act.”

This was because in June 2020 it offered her accommodation in Derby, which she refused as unsuitable given its distance from east London where she was settled and her children were at school.

The claimant argued that the circumstances in which the duty can legally end were not met as a matter of law and that Waltham Forest did not, as a question of fact, make a decision that the ‘main duty’ owed to her under s.193(2) of the 1996 Act had ended.

Waltham Forest told the court the claimant brought her claim out of time, and that it should refuse to grant any relief because this “would offend the principle of finality and be detrimental to good administration” and that the claimant had alternative remedies by way of statutory review and appeal, but chose not to exercise those rights.

The council also said that granting her application for judicial review would “open the gate” to a multitude of comparable claims.

Mr Dias said the claimant claimed the impugned decision was the council’s refusal on 30 May 2023 to accept that a duty under s.193(2) HA 1996 continued and its refusal to treat an email from her solicitors on 15 May 2023 as a request for a review of its decision that the duty had ended.

Waltham Forest argued the relevant decision was instead made in 2020 and therefore this claim had been brought years out of time.

Mr Dias said: “The claim is brought on a single ground. It is that the defendant erred in law in failing to recognise that it continues to owe a duty to the claimant under s.193(2) HA 1996 to secure that accommodation is available for her occupation.

“This is thus a ‘hard-edged’ question: either the defendant construed and applied the law correctly or it did not. This is not a question about the reasonableness of conduct but whether it was in accordance with the law.”

He said the 1996 Act required that once a local authority accepts the main duty to accommodate someone, that duty only comes to an end in certain prescribed ways set out in statute.

“There was forensic debate during the hearing about the ‘technicality’ of this issue,” he said.

“In fact, this is about something different: the proper and fair protection of the rights of people, who often are vulnerable, and who are being supported with their living accommodation. Parliament has therefore set down carefully articulated pathways to ending the main duty. They cannot be ignored. Nor should they be trivialised. They exist as a matter of safeguarding, fairness and good administration.”

He said Waltham Forest had accepted that the offer of accommodation in Derby was not valid as it was not in accordance with the statutory requirements as explained by the Court of Appeal in Norton.

The council had also accepted the main duty owed to the claimant did not come to an end by reason of this offer.

“The defendant's position is…’nuanced’,” the deputy judge said. It was that an offer that was not in accordance with the law would be sufficient for time to begin to run to apply for judicial review.

The council argued there must be a very large number of private rented sector offers not objectively in conformity with Norton and “if it is really being suggested that in all these cases the main duty remains, forensic floodgates would open on a potentially enormous scale. That cannot be good for public administration, nor consistent with the principle of finality”.

Mr Dias said neither of two letters sent to the claimant by Waltham Forest in 2020 constituted decisions ending the main duty.

He said: ”I judge that what the [council] has sought to do is promote the original offer letter into an ending decision. It was not. It has then attempted to convert a letter by a review officer refusing a requested suitability review into an ending decision. Once more, it was not.

“This is why the [council] has sought to argue that its official had cited the wrong statutory provision, when in actuality, she cited the correct provision. What is lacking in this case is precisely what existed in Norton and Warsame: a decision to end the main duty following [the Derby offer] and refusal/acceptance, as occurred in both cases before the Court of Appeal.”

Waltham Forest submitted that the court “cannot assume in 2024 that the defendant's duty to the claimant is still owed”.

But Mr Dias said: “This engages the question of what is the status of an accepted duty that has not been brought to an end by one of the routes stipulated by Parliament.”

He continued: “Parliament has prescribed what a local authority must do to cease to be subject to the main duty through a private rented sector offer.

“This authority] did not do that. This is significant. It is not a mere legal nothing, arcana of interest to legal specialists. It is about the rights of people who are not intentionally homeless, a frequently highly vulnerable group of people. The importance of the correct procedure to end the main duty was reiterated by Males LJ in Norton.”

Mr Dias issued a declaration: “The defendant continues to owe the claimant a duty under s.193 Housing Act 1996 to secure that accommodation is available for occupation by her.”

Turning to the question of whether the case would open ‘floodgates’ elsewhere, he said: “The facts in this case have two distinctive features.”

The first was that no valid decision was made by Waltham Forest that the main duty had ended and the second that the claimant still resides in the accommodation in east London in a property arranged as licensed accommodation and not owned by the council.

“For these reasons, it is likely that this case presents an unusual set of facts,” Mr Dias said. “The court confines itself to rule upon the dispute before it, based on these distinctive facts.”

Mark Smulian