Judicial review and housing complaints

On 12 February 1991 the Evening Standard reported that what was then British Rail blamed the near-total dislocation of its services on ‘the wrong sort of snow’. This became an ironic national catchphrase. However, in the more serious area of homelessness complaints, can judicial review be the wrong sort of forum for housing complaints? Or are such matters better accommodated using the Housing Act 1996? Under section 202, homelessness applicants have the right to request a review of their housing authority’s decision(s). And under section 204, they have the right of appeal to the county court on a point of law. Under Part 54, Rule 54.1 of the Civil Procedure Rules, judicial review is a claim to review the lawfulness of (among other things) ‘a decision, action or failure to act in relation to the exercise of a public function’. And rules 54.2 and 54.3 detail, respectively, when judicial review must and may be used. 

On 9 February this year, Dan Squires KC (sitting as a deputy judge of the High Court), gave his view on this issue in R (AB and another) v Westminster City Council [2024] EWHC 266. The case concerned a couple with various serious mental and physical disabilities (the claimants). They had to flee their Midlands accommodation after a ‘particularly dangerous’ ‘cuckooing’ gang (exploiting their vulnerability) had taken control of their home to engage in criminal activity.

The claimants brought judicial review proceedings against the council on the following grounds: first, breach of the 1996 act duty to provide them with suitable accommodation; and second, that the council’s ‘support animal’ policy, when read with section 29 of that act (public service discrimination), breached section 19 of the Equality Act 2010 (indirect discrimination), because medical evidence was required to demonstrate housing need with a support animal. Also challenged was the council’s failure to maintain a housing stock enabling households with pets. The third ground was that the claimants contended that the council breached the public sector equality duty in section 149 of the Equality Act 2010.

The defendant council accepted that until 17 October 2023 it had breached its homelessness duties to the claimants under Part VII of the 1996 act. However, since then, the claimants had been accommodated (with their emotional support dog) in a Travelodge in Town Y (unidentified to protect the claimants).

The council contended that since 17 October 2023, the claimants were provided with accommodation which is suitable (per section 206(1) of the 1996 act) and that consequently its duty under sections 193(2) and 206(1) of the 1996 act, to secure that suitable accommodation is available for occupation by the applicants, had been discharged. The council’s position included that although the current accommodation may not be suitable on a long-term basis, it is suitable for the claimants in the ‘short- to medium-term’.

As to suitability, the judge gave three reasons why he was not prepared to hold that the defendant was irrational in concluding the Town Y Travelodge to be suitable. The first was that the claimants’ pleadings failed to challenge the defendant council’s assessment of Town Y’s suitability. Second, it was considered inappropriate to determine this suitability challenge in judicial review proceedings since (as noted above) a Housing Act decision review was available with a right of appeal to the county court under sections 202 and 204 which was ‘significantly more likely to lead to the matter being resolved, or at least for any dispute to crystalise properly’. And third, the claimants had not established on the evidence that it was unlawful for the council to conclude that the Town Y Travelodge was suitable in the ‘short- to medium-term’. Consequently, while the court allowed the claimants’ judicial review to the extent that it asserted a conceded breach of the council’s 1996 act duties up until 17 October 2023, it found no defendant breach from that date.

As indicated, the claimants (under sections 19 and 29 of the Equality Act 2010 and the public sector equality duty) challenged both the requirement for supporting medical evidence and the council’s policy ‘not to maintain a housing stock which allows households with pets’. The court highlighted the need for procedural rigour. It is important in a discrimination claim that the pleadings make clear how exactly it is being said that the four conditions in section 19(2) for establishing indirect discrimination are met. It is obviously beneficial to indicate the evidenced basis upon which each element is said to be established.

However, it was not always clear exactly which elements of section 19 were disputed and on what basis, and the indirect discrimination evidence relied upon. As to the need for medical evidence, the court considered (among other things) that: ‘A practice which requires medical evidence, rather than disadvantaging those with disabilities overall, may, in fact, ensure that those with the greatest disability-related need to be housed with the animal are prioritised.’ On the council’s failure to secure access to pet-inclusive housing stock, the court’s difficulty was that it had ‘no evidence of how that practice operates generally or how it impacts, or is likely to impact, on those with disabilities’.

The claimants had also failed to establish a breach of the public sector equality duty in relation to the defendant’s current decision-making. And, as indicated, the court did not consider judicial review to be the appropriate remedy for dealing with the matters in question. Consequently, save for the conceded issue in respect of the period up to 17 October 2023, the judicial review claim failed.

Nicholas Dobson writes on local government, public law and governance