R. (on the application of AB) v Westminster City Council [2024] EWHC 266 (Admin)

High Court; 9 February 2024

The High Court has rejected an application for judicial review of a local authority's decision on the suitability of accommodation, as the challenge had not been properly pleaded and there was a more suitable alternative remedy.

The claimants (C1 and C2) were a couple who suffered from serious physical and mental disabilities. C2 used a wheelchair and the couple had a dog, which acted as a support animal to assist in maintaining their mental health. The couple had fled from the Midlands to London after a criminal gang took over their home to engage in criminal activity. They had initially slept rough for several nights before they were provided with hostel accommodation within Westminster City Council’s (The Council) borough. The couple made a homelessness application and were initially housed separately. C1 was housed with the dog in a hostel (but left when he felt unsafe) and C2 was housed in temporary accommodation that did not have wheelchair access.

The couple issued judicial review proceedings on the basis that the Council had breached its duty under section 193 of Housing Act 1996 by not providing them with suitable accommodation.

The Council accepted that it was in breach of its duty and moved C1 and the dog to a hotel. However, when the police determined that the couple were unsafe in London because one of the criminal gang had been seen in the city, the Council moved the couple to a hotel outside of London which accommodated dogs and was wheelchair accessible. Subsequently, the Council notified the couple that the hotel was “suitable” accommodation for the short-to-medium term, and therefore it’s section 193 duty had been discharged.

The couple applied for judicial review

1. arguing that the Council was still in breach of its duty to them
2. challenging its policies on support animals
3. arguing that the Council had breached the public sector equality duty.

The High Court, in refusing the application, rejected all three challenges. It did not find that it was irrational for the Council to decide that the accommodation was suitable. The couple’s pleaded case did not relate to the suitability of the accommodation. The Court held that judicial review was not the appropriate route to bring a challenge, as the couple had the right to an internal review and a County Court appeal. There was also no basis for assuming that the Council’s requirement that housing applicants provide medical evidence to demonstrate a need to be housed with an animal disproportionately disadvantaged applicants with disabilities. Finally, the Court held that the couple had failed to establish a breach of the public sector equality duty in relation to the Council’s decision-making.

The decision is a useful reminder to local authorities (and homeless applicants) that judicial review will often be refused if there is an alternative remedy, such as an internal review of a decision or, if that is unsuccessful, an appeal to the County Court.

A copy of the judgment is here.

Salvation Army Housing Association v Kelleway [2024] UKUT 53 (LC)

Upper Tribunal (Lands Chamber); 21 February 2024

A landlord has successfully challenged the First Tier-Tribunal’s depiction of an agreement as a “statutory”, rather than “contractual” periodic tenancy.

Salvation Army Housing Association (The Landlord) had granted a tenancy of a flat to a tenant (Mr Kelleway). Mr Kelleway was still living at the property and there was no suggestion that the Landlord had chosen to extend the starter period under the tenancy. It was therefore an assured tenancy, complying with the exception set out in paragraph 3 of Schedule 2A to the Housing Act 1988.

The Landlord had sent Mr Kelleway a notice under section 13 of the Housing Act 1988, proposing a new rent to commence on a specific date. Mr Kelleway referred the rent to the First Tier-Tribunal, which struck out the reference on the basis that the notice did not provide for the new rent to take effect on the first day of a new period of the tenancy, as section 13(2) of the Housing Act 1988 requires, and stated that in order to increase the rent, the Landlord would have to serve a new section 13 notice in the prescribed form.

The First Tier-Tribunal refused permission to appeal on the basis that it had no jurisdiction to grant permission to appeal the reasons for the decision rather than the decision itself, and went so far as to state that the application was an abuse of process.

The Landlord appealed, but not the First Tier-Tribunal’s decision to strike out the reference, but rather its reasons for making that decision – i.e. that the tenancy is a statutory tenancy and that the rent could only be increased by service of a notice complying with section 13 of the Housing Act 1988. The Landlord argued that the First Tier-Tribunal’s reasoning was wrong in law, and that it was a point of law arising from the First Tier-Tribunal’s decision. Accordingly the application for permission to appeal was perfectly proper.

The Upper Tribunal held while the First Tier-Tribunal been correct to strike out the reference, it had done so for the wrong reason. The tenancy was not a statutory periodic tenancy, and the increase of rent was not subject to section 13 and 14 of the Housing Act 1988. The reasons given by the First Tier-Tribunal for its decision were set aside, although the decision itself stood. The tenancy agreement was an assured periodic tenancy and the Landlord was free to follow the contractual provisions for the increase of rent. It held that the First Tier-Tribunal had misdirected itself when it refused the Landlord permission to appeal on the incorrect basis that an appeal could only be made against a decision itself.

A copy of the judgment is here.

Barker v Shokar [2024 ]UKUT 17 (LC)

Upper Tribunal (Lands Chamber); 16 January 2024

The Upper Tribunal has held that a house in multiple occupation was not licensable as house in multiple occupation as it fell outside the prescribed description under the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018.

Mr Barker (The Landlord) and his mother lived in a ground floor room in a house. The room had its own lockable door and consisted of a lounge, a small bathroom and a kitchen area. There was a bed on the ground level for the mother and a mezzanine area where the Landlord slept. The Landlord let out four rooms on the first and second floors to individual occupiers, who shared a first floor bathroom and the ground floor kitchen. There was also a self-contained flat in the basement.

Tribunal for a rent repayment order against the Landlord, claiming that the house was required to be licensed as a house in multiple occupation (HMO) under the Housing Act 2004. This was because The Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 provided that a licence was required if the HMO was occupied by five or more persons. The First Tier Tribunal held that the house was an HMO that was required to be licensed and made a rent repayment order against the Landlord. The Landlord appealed on two grounds:

1. that the ground floor room that he and his mother lived in was in fact a self-contained flat and therefore they did not count towards the number of occupants when determining whether an HMO licence was needed (meaning that there were no more than four occupants in the rest of the house)
2. the First Tier Tribunal did not give sufficient reasons for its calculation of the number of occupants occupying the house as their only or main residence (the Landlord said that three of the occupiers stayed for such short periods (two months or less) that the rented room cannot have been their only or main residence).

The Upper Tribunal, in allowing the appeal, held that the First Tier Tribunal had erred. It held that there were in fact two separate properties:

1. the self-contained flat, which had separate cooking, sleeping and washing facilities
2. the four rooms with shared facilities.

The two occupants of the self-contained flat, therefore, did not count towards the total number of occupants required by the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 when determining whether an HMO licence was required. It also held that the First Tier Tribunal had made no findings of fact about whether the other occupants in the house had occupied their rooms as their only or principal homes, apparently taking the matter as read and making no mention of the point. Ms Shokar’s application for the rent repayment order was therefore dismissed.

A copy of the judgment is here.