Imperative requirements in homelessness: nuts and bolts on a bumpy roadmap to suitable accommodation
Housing, Public Law and Judicial Review, Local Government
The assessment and planning duties introduced to Part 7, Housing Act 1996, by the Homelessness Reduction Act 2017 have developed a considerable body of case law (e.g. XY v Haringey LBC [2019] EWHC 2276 (Admin), R (YR) v Lambeth LBC [2022] EWHC 2813 (Admin), [2023] HLR 16 and UO v Redbridge LBC [2023] EWHC 1355 (Admin), [2023] HLR 39). Those cases have emphasised the importance of the assessments, the need for them to identify the “nuts and bolts” of an applicant’s needs, the need for them to tie into questions of suitability (in particular the needs of children within a household) and the effect of an unlawful assessment on a decision as to suitability.
In Norton v Haringey LBC (No 2) [2025] EWCA Civ 746, the Court of Appeal has both emphasised the importance of assessments and plans while simultaneously finding that an assessment of need is not an essential prerequisite to a finding as to the suitability of accommodation.
Mr Norton was offered accommodation by way of a Private Rented Sector Offer. He requested two reviews: the first against the decision that the offer was a PRSO; the second against the suitability of the accommodation. The first review spawned a trip to the Court of Appeal at which it was found that the offer was not a PRSO.
The suitability review was prepared at a time when – on any analysis – there was no lawful assessment of the circumstances of his case as required by section 189A, 1996 Act. It concluded that the accommodation was suitable.
Mr Norton appealed. HHJ Saggerson dismissed the appeal. The Court of Appeal gave permission, limited to the “hard edged question of law” as to whether an assessment under section 189A was a condition precedent to a finding of suitability.
Lewison LJ, with whom the other members of the court agreed, emphatically found that it did not.
Their reasons for that conclusion are slightly divorced from traditional homelessness law (or any argument raised by the local authority) and require a little exploration.
Where the law imposes an ‘imperative requirement’ to do some act, but does not specify the consequences of failing to do so, there has long been ambiguity over the consequences of non-compliance and whether such non-compliance invalidates the act done.
The historic position was to draw a distinction between mandatory and directory requirements. The modern approach is to focus on the “consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity” (R v Soneji [2005] UKHL 49, [2006] 1 AC 340) or, as it was put in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27; [2024] 3 WLR 601, “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.”
Applying that approach to non-compliance with the duty of assessment and planning under section 189A, Lewison LJ readily accepted that –
“the purpose of the section 189A assessment and the PHP is to provide a road map which will inform subsequent decisions; and will enable a housing officer to pick up the file with relevant information.”
and that
“an assessment of suitability based on an unlawful or otherwise legally flawed assessment under section 189A is itself legally flawed.”
He found, however, that the structure of the Act did not support the conclusion that a failure to undertake a lawful assessment invalidated a suitability decision because –
- Parliament had cross-referred to section 189A where necessary but had not done so in relation to any statutory provision relating to suitability;
- It was impossible to conclude that Parliament intended that an otherwise lawful offer would be invalid and unlawful for lack of a section 189A assessment;
- A decision on suitability could be made before a section 189A assessment had been concluded, e.g. where suitable interim accommodation is provided under section 188, pending inquiries.
This is a curious decision that leaves no-one satisfied. The current position appears to be –
- An applicant has an enforceable right to an assessment under section 189A.
- A section 189A assessment – or failure to complete such an assessment – is challengeable on public law principles.
- An assessment as to whether accommodation is suitable will automatically be unlawful if it is based on an unlawful section 189A assessment.
- An assessment as to whether accommodation is suitable which is not based on any section 189A assessment will not automatically be unlawful and will not be invalid.
The relevance, significance and level detail required in assessments and the consequences for not complying are debates that will continue to rage.
Lindsay Johnson has represented Mr Norton at all stages of his homelessness application.
