High Court considers how the s.188 interim duty to accommodate comes to an end

June 12, 2020

The High Court has held that, where a homeless applicant is not in priority need and the relief duty is owed, the s.188, Housing Act 1996, interim duty to accommodate only ends when an authority expressly notifies an applicant of the matters set out in s.188(1ZA)(b), Housing Act 1996.

Clare Cullen considers the case of R (on the application of Mitchell) v London Borough of Islington [2020] EWHC 1478.

For local authorities, this case demonstrates the importance of ensuring that proper notification is given under s.188(1ZA) to bring the s.188 duty to an end in circumstances where the relief duty is owed but an applicant is found not to have a priority need. Notifying an applicant that they are not in priority need is insufficient.

For those representing homeless applicants, it demonstrates the importance of checking whether proper notification has been given under s.188(1ZA) to end the s.188 duty.

The law

Part VII, Housing Act 1996, concerns homelessness applications.

  • Section 189B, Housing Act 1996, sets out a duty to take reasonable steps to help a person secure that suitable accommodation becomes available for at least 6 months: ‘the relief duty’. The relief duty applies to those who are homeless and eligible for assistance. The relief duty ends where section 189B(4), (5) or (9), Housing Act 1996, applies.
  • Section 193(2), Housing Act 1996, sets out a duty to secure accommodation (‘the s.193(2) duty’). The s.193(2) duty applies to those who are homeless, eligible for assistance, in priority need and are not intentionally homeless. Where applicable, the s.193(2) duty usually arises once the relief duty has come to an end.
  • Section 190(2), Housing Act 1996, sets out a duty to secure that accommodation is available for such a period as will give a person a reasonable opportunity of securing accommodation and to provide advice and assistance (‘the s.190(2) duty’). The s.190(2) duty applies to those who are homeless, eligible for assistance, in priority need but intentionally homeless. Where applicable, the s.190(2) duty usually arises once the relief duty has come to an end.
  • Section 188, Housing Act 1996, sets out an interim duty to secure accommodation where enquiries are being made into a homeless application (‘the s.188 duty’). The s.188 duty arises where a local authority has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need. Where a local authority decides that an applicant does not have priority need and the relief duty is owed, section 188(1ZA)(b) provides that the s.188 duty “comes to an end upon the authority notifying the applicant of their decision that, upon the duty under section 189B(2) coming to an end, they do not owe the applicant any duty under section 190 or 193.”

Background

Mr M applied to the authority for homelessness assistance and was provided with interim accommodation under the s.188 duty. On 5 October 2019, the authority wrote to Mr M and informed him that the authority had found that he was threatened with homelessness, eligible for assistance but was not in priority need. The letter notified Mr M that his interim accommodation would be cancelled.

On 8 November 2019, Mr M’s solicitors wrote to the authority challenging a purported failure to provide interim accommodation on the basis that the s.188 duty could only be brought to an end pursuant to s.188(1ZA). On 11 November 2019, the local authority refused to provide Mr M with accommodation and contended that the s.188 duty had ended when the authority had found that Mr M was not in priority need as notified to Mr M in 5 October 2019 letter.

Mr M applied for judicial review on the basis that the authority had failed to comply with the s.188 duty.

The issue before the High Court was whether the letter of 5 October 2019 was sufficient to bring the s.188 duty to an end.

Judgment: the 5 October 2019 letter did not bring the s.188 duty to an end

It was held that, where an authority finds that a homeless applicant does not have a priority need and the relief duty is owed, the s.188 duty ends only in accordance with section 188(1ZA) (b). Whilst the s.188 duty can end whilst the relief duty continues, a local authority is required to notify an applicant that it has decided that, when the relief duty comes to an end, it will not owe that applicant a duty under s.190 or s.193. The letter dated 5 October 2019 was insufficient in meeting the requirements of s.188(1ZA)(b).

Read the judgment in full in R (on the application of Mitchell) v London Borough of Islington [2020] EWHC 1478.