Yekini, R (On the Application Of) v London Borough of Southwark

Section 206(2)(a) of the Housing Act 1996 gives a local housing authority a discretion to require reasonable charges. That discretion may permit a nil or nominal charge, provided its exercise is reasonable in public law. A recognised duty under section 193 continues until ended under the statutory cessation provisions. Accommodation or financial assistance provided under section 17 of the Children Act 1989 may help discharge the housing duty, but does not replace the continuing Part VII duties. Suitability and affordability require an overall assessment, including available financial assistance, rather than a rigid sequence of calculation.

The claimant, a recognised Zambrano carer, had applied for Part VII housing assistance before the statutory exclusion of Zambrano carers took effect. After losing housing benefit eligibility, she was evicted from hostel accommodation for rent arrears and accommodated by social services under section 17 of the Children Act 1989. The local authority treated the Children Act scheme as exclusive and disputed the continuing relevance of Part VII.

The claim for judicial review concerned whether section 206(2)(a) permitted a nil or nominal charge, and whether the section 193 duty continued where accommodation or payment was provided under section 17. The court also considered whether later uncertainty about the claimant’s immigration assessment justified a stay.

1. Claim allowed. The court declared that section 206(2)(a) of the Housing Act 1996 does not prevent a local housing authority from deciding, in an appropriate case, to require no charge or only a nominal charge. The decision remains subject to reasonable public-law discretion and judgment (paras [53]-[66]).
2. The word “may” in section 206(2) confers a discretion whether to require a charge. Section 206(1), by contrast, identifies the permitted ways of discharging housing functions and uses the word “only”. The wider statutory context may inform the discretion, but does not remove the power to impose no charge (paras [57]-[60]).
3. The section 193 duty is ongoing and may cease only through the statutory provisions identified in section 193(3). Impecuniosity, unaffordability or the possibility that the duty has become difficult to achieve does not create an additional ground of cessation (paras [70]-[74]).
4. Accommodation, or payment connected with accommodation, provided under section 17(6) of the Children Act 1989 may in principle assist in performing the section 193(2) duty. The Children Act scheme is not thereby made exclusive. The authority must continue to comply with the duties and requirements of Part VII, including suitability, notification, review and related protections (paras [67]-[78]).
5. Affordability is part of the suitability assessment. The authority may consider the rent actually charged, available resources and financial assistance from social services or another body. The assessment is a balancing exercise and is not governed by a rigid sequence of steps (paras [75]-[77]).
6. The court refused a stay. The claimant’s status remained a live issue because the defendant authority had made no adverse decision, and the Secretary of State’s decision did not automatically determine the authority’s assessment. The court also refused permission to appeal, refused a stay pending appeal, granted declaratory relief and awarded the claimant her costs (paras [22]-[30], [79]-[86]; final order).

First-instance judicial review proceedings. The court refused the defendant’s application for a stay, granted the claim, made declarations, refused permission to appeal and extended the time for applying to the Court of Appeal for permission.