Misapplying policies can lead to Judicial Review for social landlords says High Court


01 February, 2010

The Housing Act 1996 imposes a number of obligations and requirements upon local housing authorities and Registered Social Landlords when dealing with tenancy related matters. One such requirement can be found in section 190.

This section imposes a duty on local housing authorities to secure accommodation for a homeless applicant if they are deemed to have a priority need and also to provide them with the advice and assistance deemed appropriate. This latter requirement is also to be carried out for applicants who are not considered to have a priority need.

Local housing authorities who fail to follow their own related policies may find themselves being subject to judicial review applications, as was the case in Savage v Hillingdon London Borough Council [2010] EWHC 88.

The Facts

The applicant (S) was a single mother who lived in private rented accommodation in Uxbridge from October 2005. Although housing benefit contributed towards the rent, there was a weekly shortfall, which S was unable to pay. Arrears accrued and possession proceedings were consequently issued. A possession order was granted and S was evicted on 23 October 2008.

Records held by the Council (H) showed that S sought and was given housing advice from H at various times between 2005 and 2008. In October 2008, S applied to H for assistance under Part VII of the Housing Act 1996 (relating to homelessness) and was provided with accommodation. In December 2008, H decided that S was eligible, homeless, in priority need, but that S was intentionally homeless due to the rent arrears. H informed S of this decision in a letter, which also stated that S's right to remain in the temporary accommodation would end in January 2009. S did not seek a review of that finding which meant that it was assumed that S accepted that she was intentionally homeless.

When the decision letter was received by S, she went to H's offices but was informed that the case had been closed and that a decision had already been made. S was not given any other advice and that was said to have been told that even if she appealed the decision, she would still have to find her own accommodation.

S was also advised that she was not eligible for the 'Finder's Fee' scheme whereby the Council assisted an applicant by providing a landlord or letting agent with a non-returnable deposit payment of up to £1,500 on the applicant's behalf. H's explanatory leaflet stated that in order to benefit from the scheme, the applicant needed to be homeless or could become homeless through no fault of their own. The leaflet also said that those who were intentionally homeless were "not likely" to be eligible.

In February 2009, H issued a possession claim in respect of the temporary accommodation. S consulted solicitors, who requested that H carried out a review of the decision that S was intentionally homeless. H refused to carry out such a review. S also sought assistance from H's Social Services department who carried out an assessment in June 2009.

S was evicted from the accommodation in August 2009 and ended up staying with friends. In the same month, S's solicitors wrote to Social Services seeking assistance under the Children Act 1989. A reply was sent by H's legal department which said that H was only prepared to offer accommodation for S's 4 year-old son, pursuant to the Children Act 1989.

S also commenced judicial review proceedings. They were initially adjourned by the judge, who ordered that in the interim period, H had to provide accommodation for S and her son immediately.

It was argued by S that:

  • H did not carry out any or any proper assessment of her needs;
  • H failed to provide any or any proper advice and assistance;
  • H adopted a rigid approach and fettered its discretion with regards to the advice and assistance provided and also to the 'Finder's Fee' scheme; and
  • H was in breach of its obligation to secure accommodation for a reasonable period.
The High Court's Decision

On the first point, the High Court rejected the claim that H had not carried out an assessment of S's housing needs. It was said that by the time that the decision letter was sent to S, her circumstances were well known to H. To require H to perform a new assessment of S's needs would be an artificial exercise and one which would be artificial as it would require H to forget its knowledge of S and regain it via a new assessment.

The court also held that, in the context of the advice and assistance argument, when it had been decided that H would not be providing either accommodation or a deposit to S, there was very little real advice or assistance that could be offered. This did not therefore make H's actions unlawful.

In relation to H refusing to provide assistance in the form of a 'Finder's Fee', the court took a different view. It held that it was not satisfied that H had properly applied its own policy. H excluded S because she was intentionally homeless and did not consider whether to offer her the benefit of the scheme having regard to her particular circumstances (the explanatory leaflet said that those intentionally homeless were not likely to be eligible). This meant that H had misunderstood its own policy and therefore unlawfully discharged its duty to provide advice and assistance under the Housing Act 1996.

On the final point of S's claim, the court noted that H had permitted S to remain in the temporary accommodation for a much longer period of time than initially stated: S was not evicted for more than 8 months after H's decision letter was sent. This led the court to find that H had performed its duty in this respect.

In summary, the court ruled that H had acted unlawfully in the exercise of its duty to provide advice and assistance because it misunderstood and misapplied its own policy in relation to the 'Finder's Fee' scheme. S's other grounds were rejected by the court.


This case shows the importance of local housing authorities and Registered Social Landlords being not only aware of their policies and procedures, but also applying them to day-to-day work. One of the ways that this can be achieved is by having a full and detailed file for each case dealt with. A failure to do so can lead to judicial review proceedings which can prove to be an expensive exercise.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.


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