The King (on the application of an) v London Borough of Barking and Dagenham

Hearing date: 19 June 2025

Judgment Released: 3 September 2025

Approved Judgment

THE DEPUTY JUDGE:

INTRODUCTION

This is one of the many judicial review claims coming before the Administrative Court which raises issues as to the legal adequacy or otherwise of the efforts that have been made by a local authority for providing housing assistance to a homeless family under Part VII of the Housing Act 1996 (“HA 1996”). A high proportion of such claims relate to London boroughs. This is not surprising, given the relatively high cost of accommodation in London and the consequent scarcity of private rented housing for families at rent levels capable of being afforded by them (whether from their earned incomes or through the housing element of Universal Credit).

It cannot be doubted that the London local authorities face a difficult task in carrying out their duties under Part VII, given the high level of demand for housing assistance and the scarcity of affordable rented accommodation. Many homeless people in the London boroughs who are in ‘priority need’, and who are thus owed the ‘main’ housing duty under s.193 HA 1996, wish to be housed within the same, or a neighbouring, London borough, or at least within the Greater London area. Many of those people have good practical reasons for wishing to be accommodated locally, such as the locations of their children's current schools, caring responsibilities towards extended family members, or a reasonable desire to maintain contact with existing support networks. But the scarcity of available housing in London, and the finite nature of local authority budgets, means that local authorities have to disappoint many such people, even if this results in some degree of hardship for those individuals or their families.

This makes it all the more important that local authorities carry out proper and informed assessments of homeless persons' housing needs, as required by s.189A HA 1996 (as inserted by the Homelessness Reduction Act 2017). Such assessments play an important role in enabling a local authority's housing officers to carry out their daily tasks of allocating available housing resources – including, in particular, flats and houses that are located within the local area – to housing applicants in a way that is consistent and fair, based on relative levels of need.

It is also important that local authorities seek to ensure that, where the only accommodation they have yet been able to offer to a family with children is temporary bed and breakfast (“B&B”) accommodation, this continues for no longer than necessary. Articles 3 and 4 of the Homelessness (Suitability of Accommodation) (England) Order 2003 (S.I. 2003/3326) (the “2003 Order”) effectively place a 6-week limit on the period for which a local authority's provision of “ suitable” accommodation for a homeless person with “ family commitments” may take the form of B&B accommodation.

These duties of local authorities are the subjects of the two grounds of challenge raised in this judicial review claim.

Ground 1 concerns the lawfulness of the Defendant's assessment and/or review of the Claimant's housing needs in accordance with s.189A HA 1996, read together with ss.205–210 HA 1996, s.11(2) of the Children Act 2004 (the “CA 2004”), and the public sector equality duty in s.149 of the Equality Act 2010 (the “PSED”). Ground 1 alleges that, to the extent that the Defendant has made assessments of the Claimant's housing needs, those housing needs assessments (“HNAs”) have been inadequate for complying with the requirements of those statutory provisions.

The Claimant pursued Ground 1 notwithstanding her rights to a statutory internal review by the Defendant of its decision as to the ‘suitability’ of her current accommodation, and to challenge the outcome of such a review by way of an appeal to the county court. The Claimant had already requested such an internal review under s.202 HA 1996. As to why that alternative remedy did not make this judicial review claim inappropriate, the Claimant's Counsel, Mr Jackson, contended – and I accept – that the ongoing internal review was not a substitute for Ground 1, which is concerned with the Defendant's compliance with its duty under s.189A to produce a HNA. The purpose of s.189A is to frontload the assessment of the needs of applicants to inform future offers of accommodation and to ensure applicants can challenge any incorrect assessment of needs before being placed in accommodation. A s.202 review, and any appeal from the review outcome under s.204, would be limited to considering the suitability or otherwise of specific accommodation, and not concerned with the adequacy or content of the HNA which would also inform future offers of housing. As matters stood, the Claimant was at risk of being moved out of the Defendant's borough based on a flawed HNA which did not recognise her need to remain in the borough. This was, Mr Jackson submitted, a separate issue from the ‘suitability’ of her current accommodation.

Ground 2 is that the Defendant's “Temporary Accommodation Placement Policy” document is unlawful in that it authorises, induces and/or approves its housing officers placing homeless applicants with dependent children in B&B accommodation for longer than 6 weeks, contrary to articles 3 and 4 of the 2003 Order.

FACTUAL BACKGROUND

The following summary of the factual background largely replicates the relevant section of the Claimant's skeleton argument, which was uncontroversial.

Household background

The Claimant was born in Nigeria and moved to the UK in 2013. She lives with her daughter (“EB”), who is now 7 years old.

EB has autism spectrum disorder (“ASD”) and special educational needs (“SEN”). She has impaired speech, communication, concentration, and sensory processing. She often becomes dysregulated by loud noises, crowded places, and sudden changes in environment. EB struggles to use public transport. She can become dysregulated when buses or trains are busy, or due to certain colour combinations, or because the seat she wants is not available. If EB's journey to school is overwhelming for her, it impairs her learning at school.

EB has an education health and care plan (“EHCP”), a document prepared pursuant to Part III of the Children and Families Act 2014. The EHCP sets out her impairments and the special educational provision she requires, which include one-to-one support from a teaching assistant, regular short breaks, individualised and small group teaching, and speech and language therapy.

EB currently attends a mainstream primary school in Barking (the “Current School”) where she receives one-to-one support from two teaching assistants and attends booster sessions. The Current School is said to provide a valuable source of stability for her. She is making significant progress there.

The Current School's view, however, is that it cannot fully meet EB's needs due to the high level of support she requires. It recommended that she be offered a place at a school with more specialist provision. Pursuant to that recommendation, the Claimant has applied for a place for EB at another primary school in the Defendant's borough (the “Other School”) – a school which, unlike the Current School, has an ‘additional resource provision’ (a specialist internal unit) for children with ASD – for the school year commencing in September 2025. The Claimant says that it is, and has always been, vital that there is no disruption to EB's education at the Current School whilst she is enrolled there.

The Claimant has been seeking employment and pursuing adult education to provide for her family and lift it out of homelessness. She is currently undertaking a Level 1 Health and Social Care course at a college in the Barking and Dagenham area, following on from other courses she has completed there.

Homelessness Assistance

In 2020, the Claimant and EB started living with a friend (“FA”) in a flat in the Defendant's borough. In the spring of 2024, FA informed the Claimant that she would need to find alternative accommodation as the landlord wanted the flat back. In Autumn 2024, after being granted leave to remain in the United Kingdom, the Claimant applied to the Defendant for homelessness assistance, in anticipation of becoming homeless.

On 28 November 2024, the Defendant proposed a property for the Claimant and EB in Dartford, 1.5 to 2 hours from the Current School by public transport. The Claimant says that she was told by the housing officer that if she did not accept, she would have to move to Manchester or Durham. The property subsequently became unavailable.

On the same day, the housing officer sent the Claimant a HNA form, which she duly completed. In the form, the Claimant outlined EB's ASD diagnosis, the importance of her education at the Current School, the disruption that would be caused by any change in her education, and her need for in-borough accommodation. The Claimant had a telephone call with the housing officer around that time, which involved some limited discussion around EB's needs.

By email to the housing officer on 2 December 2024, the Claimant's support worker from the organisation Together with Migrant Children set out EB's ASD diagnosis, EHCP, the support she was receiving at the Current School, her difficulties using public transport, the disruption that...