Paul-Coker, R (on the application of) v London Borough of Southwark

A local authority exercising the discretion under section 188(3) of the Housing Act 1996 must genuinely apply the Mohammed guidelines. It must assess the merits of the review case, any new material, and the applicant’s personal circumstances and the consequences of refusing accommodation. Merely identifying those factors is insufficient. The authority must explain how the material facts bear on them. A decision based on a material legal error and failing to address significant evidence may be Wednesbury unreasonable or irrational.

The claimant, a British citizen who had returned from Sierra Leone, challenged the defendant local authority’s refusal to provide interim accommodation pending review of a homelessness decision under section 188(3) of the Housing Act 1996. The authority considered that she was not habitually resident and therefore ineligible for assistance. The claimant argued that the refusal failed to apply the governing discretion properly, ignored significant new material, and relied on the erroneous view that six months’ habitual residence was required. The central issue was whether the refusal had been lawfully and rationally reached.

1. The claim for judicial review succeeded. The decision of 24 January 2006 refusing accommodation pending review was quashed.
2. Section 188(3) of the Housing Act 1996 confers a discretion, rather than a duty, to continue accommodation pending review. Its exercise is subject to ordinary public law controls, including Wednesbury unreasonableness and abuse of power.
3. The authority had to undertake the balancing exercise identified in R v Camden London Borough Council ex p Mohammed [1998] 30 HLR 315. Relevant matters included the apparent merits of the case or whether the decision was finely balanced, new information or argument capable of affecting the review, and the applicant’s personal circumstances and the consequences of refusing accommodation.
4. The decision letter paid lip service to those matters but did not apply the facts to them. It failed to explain why more than seven months’ residence was insufficient, and failed to address the birth of the claimant’s child, her earlier residence and education in the United Kingdom, repeated visits, travel with her belongings, and family and social connections here.
5. The underlying section 184 decision also contained a material misdirection by asserting that six months’ habitual residence was required. The section 188(3) decision relied substantially on that flawed decision without confronting the error.
6. The birth of the child was treated only as powerful evidence relevant to the claimant’s settled intention to reside. The court did not determine the child’s habitual residence or any consequent change in the claimant’s status.
7. The authority was ordered to maintain accommodation until it made a fresh section 188(3) decision or determined the section 202 review, whichever occurred first. Permission to appeal was refused and costs followed the event.