Genevieve Screeche-Powell acted for the local authority that successfully defended a s. 204 Housing Act 1996 appeal brought by a homeless applicant.
The case raised the following important points of principle:
- whether parliament intended an alleged breach of the “new” s.189A Housing Act duties totally invalidate any subsequent decision to fulfilling its duty to secure suitable accommodation
- the significance of the role of the s. 202 review process in curing alleged deficiencies.
This is the 1st time that the Court of Appeal has had to consider the nature and impact of the s. 189A Housing Act duties on the lawful performance of the s.195 prevention duty in section 204 appeal proceedings.
Background to the appeal
In August 2023, the local authority issued a review decision stating that an accommodation it had offered to Ms Fatolahzadeh and her disabled son was suitable. Her s.204 appeal was dismissed by the County Court in July 2024.
Ms Fatolahzadeh filed an appeal which was heard by the Court of Appeal in July 2025. She argued:
- the local authority had breached its duty to assess her housing needs and review her personal housing plan in accordance with s.189A Housing Act 1996
- the consequence of the breach was it invalidated a purported discharge of duty.
- therefore, its review decision on suitability was rendered unlawful.
Court of Appeal judgment
On the nature of the s.189A assessment duty itself, the Court of Appeal endorsed the following propositions:
- local authorities should adopt a collaborative approach towards applicants
- a housing needs assessment does not need to be recorded in a single document
- deciding whether a duty to provide a lawful housing needs assessment and/or personal housing plan required an assessment of the totality of the housing file as it may be viewed by a reasonable and sensible housing officer.
On the broader points of principle concerning the legal consequences of alleged non-compliance with the s.189A duty and the nature, extent, and role of s.202 review rights.
- Section 202 does not provide a blanket right to request a general review where an applicant is dissatisfied with the approach or outcome being adopted or proposed by a local authority.
- The right to request a review of a decision is specific to the types of decision identified in s.202(1).
- There is no s.202 right of review of a housing needs assessment or the personal housing plan produced by the authority.
- There may be circumstances where an inadequate assessment may be challengeable in judicial review, subject to the procedural requirements and time-limits of that forum.
- On established public law principles, administrative acts are valid unless and until quashed by a court.
- The consequences of non-compliance with an imperative statutory requirement are to be decided in accordance with the R v Soneji approach; was it the legislative purpose that an act done in breach of that provision should be invalid?
- In enacting Part 7 Housing Act 1996, parliament has provided the s.202 right to remedy specified decisions. It would be 'bizarre, to the point of incoherence, to impute to Parliament an intention that even an entirely faultless review decision could then be set aside because of the earlier deficiency which it has remedied'.
The Court of Appeal reformulated Ground 1 of Ms Fatolahzadeh’s appeal in the following terms:
Where a request for a review of suitability is made and the review decision adequately addresses and thereby remedies a substantive deficiency in the underlying decision, can the review decision be challenged by way of a s.204 appeal on a point of law on the basis of the original deficiency in the assessment of suitability.
The Court of Appeal’s view, unanimously was “in no doubt it cannot.”
In dismissing the appeal, the court also found Ms Fatolahzadeh’s case was fundamentally flawed because the assertion that the LB Barnet had not carried out a housing needs assessment was unsustainable.
The local authority's assessment was continuing and it had adopted a collaborative approach, its review decision was detailed and thorough and there was no substantive criticism of it.
Ms Fatolahzadeh is seeking permission to appeal to the Supreme Court.
Read the full judgment in: Fatolahzadeh v London Borough of Barnet [2025] EWCA Civ 1174 (18 September 2025)