E. L., R (on the application of) v The Royal Borough of Kensington and Chelsea

A local housing authority’s power to provide alternative accommodation does not itself create a duty to do so. Where a housing problem is presented as a request for a transfer under Part 6 of the Housing Act 1996, it is not irrational for the authority to consider it under Part 6 rather than the homelessness regime in Part 7.

A substantive legitimate expectation requires a clear, unambiguous and relevantly unqualified assurance. The court must assess what the assurance reasonably conveyed and whether frustrating it would be so unfair as to constitute an abuse of power. A conditional proposal to search for suitable accommodation and make an offer only if suitable accommodation is found may not satisfy that test.

The claimant, a secure tenant rehoused after the Grenfell Tower fire, sought judicial review of the Defendant’s failure to provide alternative accommodation. He relied on Part 6 and Part 7 of the Housing Act 1996, the Defendant’s allocation policies, and an alleged substantive legitimate expectation arising from communications on 3 March 2021.

Permission was granted on two grounds. The first concerned an alleged continuing duty to provide suitable accommodation. The second concerned an alleged promise to search for suitable accommodation and make one direct offer while enforcement proceedings continued. The court also considered a later Grenfell Settled Home Policy as relevant to the fair disposal of the claim.

1. Ground 1 dismissed. The Defendant acted in accordance with its allocation scheme read with the Grenfell Rehousing Policy. The difficulties in identifying accommodation suitable for the claimant’s physical and mental health and the potential impact on future neighbours explained the delay. The existence of a power to offer alternative accommodation did not mean that the Defendant was obliged to exercise it.
2. The claim under Part 7 of the Housing Act 1996 also failed. The claimant sought more secure alternative accommodation, rather than treatment as homeless. It was uncertain whether a Part 7 application would have produced the desired result, including because intentional homelessness or the reasonableness of continued occupation might arise. The representations had in any event been advanced as a Part 6 and allocation-scheme case, so it was not irrational to treat them in that way.
3. Ground 2 dismissed. Applying the principles summarised in R (on the application of Alansi) v Newham LBC [2013] EWHC 3722 (Admin), a substantive legitimate expectation requires a clear, unambiguous and relevantly unqualified assurance. The 3 March 2021 communications were conditional on identifying suitable accommodation. They did not specify that suitable accommodation would be found, the intensity of any search, or that an offer would necessarily be made. They were also not communicated to the claimant, who therefore did not rely on them.
4. Even if an expectation had arisen, frustrating it would not have been so unfair as to amount to an abuse of power. The later Grenfell Settled Home Policy was not relevant to breach at the date of issue, but provided an adequate alternative remedy and materially improved the claimant’s position because the ordinary disqualification following legal action did not apply under that policy.

The judicial review application failed.