Brooks, R (On the Application Of) v The London Borough of Islington

Under section 188 of the Housing Act 1996, the existence of the interim duty continues until the authority notifies the applicant of its decision under Part VII. The duty is distinct from the steps required to perform it. Ordinarily, the authority performs the duty by securing an offer of suitable accommodation intended to remain available until notification of the decision. An applicant’s refusal of that offer does not require the authority to provide alternative accommodation. The position may change if a material change of circumstances makes the accommodation unsuitable.

The claimant sought judicial review of the London Borough of Islington’s decision that it had discharged its interim duty under section 188 of the Housing Act 1996 after she refused an offer of temporary accommodation. By the time of the hearing, the authority had notified her of its homelessness decision and the live dispute had become academic.

The court exercised its discretion to determine the principal statutory-construction issue because it was important to housing authorities and applicants and was unlikely otherwise to be resolved. It declined to determine the fact-specific alternative issue concerning whether the claimant should have been given further time to reconsider.

1. Academic issue. The court exercised its discretion to hear the principal issue despite its academic nature. The question concerned statutory construction, had practical importance, arose on actual facts and might otherwise routinely become academic before judicial review could be determined. The fact-specific alternative issue was not determined.
2. Existence and performance distinguished. Section 188 imposes a duty where the authority has reason to believe that the applicant may be homeless, eligible for assistance and in priority need. The duty continues until notification of the authority’s decision under Part VII, as provided by section 188(3).
3. Performance of the interim duty. The duty to secure that accommodation is available may be performed by securing suitable accommodation from the authority or another person, within section 206. An authority ordinarily performs the section 188 duty by securing an offer of suitable accommodation intended to remain available until notification of its decision. If the applicant refuses that offer, the authority need not make further offers.
4. Qualification. The duty remains enforceable if a material change of circumstances means that the accommodation is no longer suitable before the authority’s decision is notified. The authority must then reconsider whether suitable accommodation is available.
5. Authorities and present case. The reasoning concerning the full housing duty in R v City of Westminster ex p Chambers (1982) 6 H.L.R. 28 and R v Wycombe District Council v Hazeltine (1993) 25 H.L.R. 313 applied by analogy to section 188. The alternative decisions concerning section 21 of the National Assistance Act 1948 did not assist. Islington had performed its section 188 duty by securing the offer at 48 Barnsfield Road.