Terminating the section 188 duty: spell it out

10 Jun 2020


The Administrative Court has handed down judgment today on the complex interrelation of the provisions of the Housing Act 1996 as amended by the Homelessness Reduction Act 2017.

The Claimant had applied to Islington for assistance as homeless and was found not to be in priority need. He sought a review of that decision, and accommodation pending review, which the local authority refused in a Mohammed letter, the contents of which were not challenged in the claim for judicial review.

This decision was overtaken by events, as the Claimant moved in with his brother, where he has remained throughout the pandemic, but he was nonetheless permitted to pursue his claim.

Under section 188, if the local housing authority has reason to believe (a lower standard than being satisfied) that the applicant is homeless, eligible, and has a priority need for assistance, they must secure that accommodation is available for the applicant’s occupation, until a decision is taken on the duty owed.

The Claimant argued that the duty persisted, regardless of the decision on his application, until the local authority notified him that the section 189B(2) duty had come to an end and that they did not owe him a duty under section 190 or 193.

The Defendant considered that, once it had decided that the Claimant was not in priority need, the precondition for the application of section 188 no longer persisted: there was no reason to believe that he was in priority need. Alternatively, the local authority argued, the decision that the Claimant was not in priority need told the Claimant that he would not be owed any duty under section 190 or section 193 – both duties only owed to those in priority need.

The judgment found a middle ground between these two submissions. The Judge held that nothing less than an express notification referring to sections 190 and 193 will do, but that the Claimant was wrong to contend that the section 188(3) duty could not be terminated before the section 189B(2) duty was ended. Islington had avoided notifying the Claimant of the termination of the relief duty, wanting to assist the Claimant to find his own accommodation, and the Claimant’s argument would have been a perverse incentive to a local authority to terminate the relief duty early.

In the circumstances, Islington sent a letter to the Claimant telling him that once the section 189B duty comes to an end, he will not be owed any duty under section 190 or 193, information which will come as no surprise to him. They were not ordered to accommodate him, or take any further steps as a result of his claim.

Catherine Rowlands acted for the London Borough of Islington.