Judge declares council breached housing duty but dismisses rest of claim as she was not satisfied breach was ongoing

A High Court judge has found that City of Westminster Council breached the duty owed to a claimant pursuant to s.193(2) of the 1996 Housing Act, but she dismissed the remainder of his claim on the basis that she was not satisfied the breach was not ongoing.

Permission to bring the judicial review claim had been granted by Margaret Obi, sitting as a Deputy High Court Judge, at an oral hearing on 10 November 2022, to pursue three grounds of judicial review:

1. The council is in breach of its duty under section 193(2) to provide the claimant with suitable accommodation.
2. The council’s refusal to place the claimant in the medical Priority Group, and/or section 6.1.2 of the policy which prevents a homeless applicant from entering the medical priority group, denies him a reasonable preference to which he is entitled by statute and is therefore unlawful as both a breach of statutory duty and/or as being unreasonable in the Wednesbury sense.
3. The council's failure to provide sufficient information to permit the applicant to determine whether housing accommodation appropriate to his needs is likely to be available to him and, if so, how long it is likely to be before such accommodation becomes available for allocation to him is a breach of the duty under section 166A(9)(a)(ii).

Outlining the background to the case, Mrs Justice Steyn DBE said the claimant was married with two children aged seven and three. The claimant is disabled. He suffers from epilepsy. Although he takes medication for it, his epilepsy is not controlled.

The judge said: “Due to his epilepsy he suffers from mobility difficulties. He requires a walking frame and stick, and he has great difficulty using stairs. His disabilities necessitate support with everyday activities, including cooking, personal care, dressing and mobilising.”

On 6 February 2018, the claimant applied to Westminster for housing assistance under Part VII of the 1996 Act, after he and his family had been given notice requiring them to move by the property owner of their private rented accommodation.

In October 2018, the council provided the claimant with temporary accommodation in a flat in Falkirk House. This was a two-bedroom maisonette, with an internal flight of stairs, on the 16th floor of a block of flats.

The judge said that on 8 October 2018, the council sought a medical opinion in response to the claimant's request for a move to a three-bedroom property with no internal stairs. The medical advisor responded the following day:

"The client is suffering from severe and debilitating conditions that cause him chronic pain issues, restricted mobility, and requiring support with his activities of daily living. I recommend a mobility category 3. In regards to requiring his own room, I cannot see any evidence that he requires extra space for his medical needs, therefore I would not support the allocation of an extra room."

The council accepted this recommendation and placed the claimant in "mobility category 3".

The claimant reiterated his request for a three-bedroom property.

His wife explained that in the Falkirk House flat she sleeps on the floor in the bedroom occupied by her two children, while the claimant sleeps in the only other bedroom.

Mrs Justice Steyn said: “The reason she does not share a bedroom with the claimant is that due to his nocturnal seizures he shakes and moves around uncontrollably, and makes groaning noises, to an extent that makes it impossible for her to sleep in the same bedroom.”

The defendant council decided that the claimant should be registered as needing three-bedroom accommodation, on account of the impact of his health problems. Accordingly, he has been eligible since then to bid for three-bedroom Part VI accommodation.

The claimant sent a letter of claim in accordance with the pre-action protocol on 18 March 2022, to which the defendant responded on 8 April 2022. This claim was issued on 9 June 2022.

On 9 November 2022, Westminster made the claimant an offer of temporary accommodation in a flat in Braithwaite Tower. The letter stated:

"This is a 3-bedroom property, on the eighteenth floor, with two lifts and it is suitable for up to 5 people. There is level access into the block and to access the property (via the lifts) and there are no internal steps inside the flat.”

On 22 November 2022, the claimant accepted the offer of the Braithwaite Tower flat, subject to conditions, while at the same time requesting a review of its suitability. The email from the claimant's solicitor to the defendant stated:

"My client wishes to accept the offer of temporary accommodation at [the] Braithwaite Tower [flat]. However, my client's acceptance is conditional on the following:

• • The authority agreeing that [the claimant] is not required to move into the property until the adaptations to the bathroom and toilet have been completed and he is not liable for rent until the works are complete and the property is ready for him to move into.
  • The lift maintenance records demonstrate that the lifts are mostly in working order and that defects are remedied within a reasonable period of time.
  • There is a satisfactory fire risk safety assessment and evacuation plan in the event of a fire.”

At the time of the present judgment (4 May 2023), Mrs Justice Steyn said: “The claimant and his family are still living in the Falkirk House flat. By the time of the hearing on 21 February 2023, the adaptations to the Braithwaite Tower flat were not yet complete but the defendant anticipated they would be completed within a few days.

“At the date of this judgment, the defendant takes the view that the Braithwaite Tower flat is now ready for the claimant's occupation.”

Turning to Ground 1, ‘Breach of the main housing duty’, Mrs Justice Steyn outlined the submissions from the parties. She said: “The claimant's submission was that this is a clear-cut case of a historic and continuing breach of the main housing duty, in circumstances where the s.193(2) duty was owed, and the defendant had accepted in October 2018 that the claimant required a property without internal stairs, and in April 2021 that he required a three-bedroom property.”

She continued: “In his evidence, the claimant describes the Falkirk House flat as "profoundly unsuitable" and explains the "terrible impact" it is having on his and his wife's health”.

“The defendant submitted that this aspect of the claim is academic in circumstances where the claimant had accepted an offer of the Braithwaite Tower flat, which the defendant considered to be suitable”, said the High Court judge.

Analysing the submissions, the High Court judge said: “In my judgment, the claimant has shown that a conclusion that the Falkirk House flat was suitable for the claimant, even only in the short-term while alternative suitable temporary accommodation was identified, would have been irrational at least by the time the claim was issued on 9 June 2022.

“By then, the claimant had been in a property with internal stairs for 3 years 8 months, despite the defendant's recognition throughout that time that he needed a property with level access internally. This has had the serious consequence of effectively confining the claimant to the top floor, as it is very difficult for him to access the kitchen and living area.”

The judge said: “In addition, by the time the claim was issued, the claimant had been in a two-bedroom property for a period of 14 months since the defendant had accepted that, for health reasons, the family required a three bedroom property.

“[…] At the time of the hearing, the breach remained ongoing as no alternative suitable accommodation was available for the claimant.”

On ground 1, Mrs Justice Steyn concluded that the council had breached the main housing duty owed to the claimant, however stated: “I am not satisfied that the defendant is in ongoing breach of that duty”.

Considering ground 2, the High Court judge said: “The claimant contends that, although the Allocation Scheme makes provision for affording a reasonable preference to the homeless and to those with a medical priority, the effect of §6.1.2 of the Allocation Scheme – which prevents a person such as the claimant who needs to move on medical grounds being awarded medical priority, if he is living in temporary accommodation – is to deny the claimant a reasonable preference to which he is entitled.

“The claimant submits this aspect of the Allocation Scheme is in breach of s.166A(3).”

Westminster submitted the court should not entertain this ground because it is of “no consequence to the claimant”. Once the claimant moves to the Braithwaite Tower flat, he will no longer have a need to move for medical reasons.

Concluding on ground 2, she said: “I reject the contention that this ground is academic. The claimant is currently still living in the Falkirk House flat and, in any event, the issue is one that is likely to affect other applicants. However, in my judgment, this ground must fail for the substantive reasons given by the defendant, with which I agree.”

“The purpose of §6.1.2 of the Allocation Scheme is to ensure that those who fall within s.166A(3)(d), and have no other way to secure a move into accommodation that can meet their medical or welfare needs than by obtaining Part VI accommodation, are given a reasonable degree of priority.

“If the defendant were to give applicants who fall within more than one of the classes identified in s.166A(3) the choice as to which priority group they should be placed in, I accept that would add considerably to the administrative burden on the defendant.”

She rejected ground 2.

Turning to Ground 3, ‘Breach of s.166A(9) of the 1996 Act’, Mrs Justice Steyn said: “In my judgment, the defendant has sought to provide all the information that the claimant has requested, and in particular all the information that had been requested when this claim was filed. At that stage, the information sought concerned the number of properties that had been, and that would in the future, be allocated to each priority group.

“To the extent that the defendant has not answered questions raised in the claimant's skeleton argument (filed two clear working days prior to the hearing), or oral submissions, such an omission does not amount to a breach of paragraph 14.1.1(b) or 14.1.4 of the Allocation Scheme as the defendant had no reasonable opportunity to respond to the request prior to the hearing. Moreover, failure to answer such late requests is not part of the pleaded claim.”

Mrs Justice Steyn concluded that ground 3 also failed.

Concluding the judgment, she said: “For the reasons that I have given I find the defendant has breached the duty owed to the claimant pursuant to s.193(2) of the 1996 Act, but in circumstances where the Braithwaite Tower flat (the suitability of which is not a matter for me) is now available, I am not satisfied that breach is ongoing. The remainder of the claim is dismissed.”

She added that “the only relief which it is appropriate to grant the claimant is a declaration.”

Lottie Winson